Employment Bulletin – June 2016

Examining employee's phone 'did not breach his human rights'

An employer did not breach an employee's human rights when it checked his phone for emails and messages while investigating a claim of harassment.

That was the decision of the Employment Appeal Tribunal (EAT) in the case of an NHS Trust and one of its managers.

A nurse complained that the manager was harassing her. Several malicious emails about her were sent anonymously to senior management.

The Trust investigated and checked the manager's iPhone, which contained various items linking him to the anonymous emails.

The manager was dismissed for gross misconduct and responded by bringing a claim of unfair dismissal.

He also claimed that in checking his phone, the Trust had breached his right to privacy under the European Convention on Human Rights (the Convention). The Employment Tribunal dismissed his unfair dismissal claim and also ruled that his human rights had not been breached.

The EAT has upheld that decision. It held that although the Convention did protect private communications, it did not apply in this case because the manager's emails had been sent to colleagues at their work addresses and had caused upset that had affected their work.

This is an interesting case but it should be remembered that generally, the Convention does apply to private correspondence, which can cover work emails. Legal advice should be sought before doing anything that might be considered to be invading personal privacy.

No 'injury to feelings' under Working Time Regulations

An employee has lost her claim for compensation for injury to feelings under the Working Time Regulations 1998.

The Employment Appeal Tribunal (EAT) held that such compensation was confined to incidents of discrimination.

The case involved a woman who brought a claim against her employer for failure to allow her rest breaks as required by the regulations. The Employment Tribunal upheld her claim and awarded her £1,220 compensation for pecuniary loss.

However, it rejected her claim that she should also receive compensation for injury to feelings because of the way the case had been handled by the employer.

That decision has been upheld by the EAT. It said that the tribunal had been right to hold that compensation for injury to feelings was confined to discrimination cases.

It also added that in discrimination cases, compensation for injury to feelings was based on the effect on the claimant, not the fault of the perpetrator. Injury to health and injury to feelings were both based on the injury suffered, with no award made if no injury was suffered.

Software company granted injunction against former employee

A software company has been granted an interim injunction preventing a former employee from working for a larger rival.

The company was a relatively small enterprise but had a market-leading service in its sector. It had employed a sales executive on an employment contract that included a restrictive covenant. This stated that if he resigned, he could not join a rival company doing similar work for a period of 12 months. There was also a restriction covering various geographical areas.

In spite of this, the executive started doing informal work for a rival business. He then resigned so he could work for the rival full time. Before leaving, he sent attachments from his company email address to his personal email address.

The company sought an injunction to enforce the restrictive covenant.

It submitted that it had substantial interests to protect including confidential information such as its methodology, pricing strategy, and sales techniques. The rival business submitted that the executive had held a relatively minor role with the software company and there was nothing confidential in the information he had downloaded.

The court held that there were some serious issues to be tried. The executive's role did not appear to be as minor as the rival suggested. The covenant also made it clear that he was not allowed to work for a competitor in the same area of business. The restriction was wide and drastic but it was not plainly obvious that it was excessive.

The software company should therefore be granted an injunction to protect its interests until a full hearing could be heard.

Discrimination claim fails because claimants 'were not employees'

A racial discrimination claim has failed after the Court of Appeal ruled that the claimants involved could not be classed as employees.

The case involved a group of people who provided services to the Courts and Tribunals Service (HMCTS) on a case-by-case basis.

They also worked for other institutions. HMCTS was under no obligation to offer them work, and they were under no obligation to accept it when offered. They were only paid for work done, with no provision for holiday pay, sick pay or pension.

They considered themselves as self-employed, and were treated as such for tax purposes. In 2012, they brought proceedings against the Ministry of Justice for racial discrimination contrary to the Equality Act 2010 (the Act).

The Employment Tribunal rejected their claim on the grounds that they could not be classed as employees for the purposes of the Act because of the ad hoc nature of the services they provided. There was no mutual obligation between them and the HMCTS and they were not in a subordinate position.

The claimants appealed, arguing that they were employees because they were acting "under direction", or were in a "subordinate" position while at work.

The case went all the way to the Court of Appeal, which upheld the tribunal's decision. It said that as a matter of common sense, the fact that a person was supplying services on an assignment-by-assignment basis indicated a degree of independence that was incompatible with employee status.

Company protects staff from harassment by former employee

An airline company has been granted a court injunction to protect its staff from harassment by a former employee who had threatened them with insulting and abusive language.

The court heard evidence that the employee had worked for the airline as a cabin attendant but had failed two safety exams. He was allowed to re-sit and he passed, but then failed a third exam.

It was decided that the third failure amounted to gross misconduct and he was dismissed following a disciplinary hearing. He felt that he had not received proper training and was extremely aggrieved.

He brought a claim that was struck out by an employment tribunal on the basis that it had no reasonable prospect of success, and because of what the tribunal found to be his vexatious conduct and intimidation of witnesses.

He had sent offensive emails to individuals who worked for the airline and had named them on social media websites. He had made accusations of racism and used threatening, insulting and abusive language.

The airline company took legal action and he gave undertakings in court that he would cease his behaviour, but then sent further abusive emails.

The company then took further action and the court has now granted a permanent anti-harassment injunction against the former employee. The judge said he had directly contravened the undertakings he had given and had made clear threats against the airline and its employees. He had set out to intimidate in a disgraceful manner and his behaviour was offensive and frightening.

The company had no alternative but to take legal action to stop him.