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Michael D. Smith

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It is becoming increasingly common for employees to make covert recordings of meetings held with their employer. The reasons behind these recordings vary from a simple desire to keep a record of what is said to attempts to entrap their employer and use the recording against it in court proceedings.

The Employment Appeal Tribunal (EAT) recently considered the issue of covert recordings in Phoenix House Ltd v. Stockman. The EAT had to decide whether an employee’s covert recording breached the implied term of mutual trust and confidence. In its decision, the EAT provided helpful commentary on covert recordings which may assist employers to navigate this difficult area.Continue Reading Covert recordings at work on the rise in the UK

At the end of 2018, a report from a committee of the UK parliament called on employers and regulators to take a more proactive role in relation to sexual harassment in the workplace, including in relation to the use of confidentiality (non-disclosure) agreements.

In its recent response to that inquiry, the government has set out its ‘measures to prevent the misuse of confidentiality clauses in situations of workplace harassment or discrimination’. This response, together with the launch of its consultation on tackling the wider issue of sexual harassment in the workplace, reflects the UK’s continued focus on the issue of workplace harassment.

Confidentiality clauses tend to be drafted into contracts of employment and settlement agreements. They are provisions in those contracts which seek to prohibit the disclosure of information. While recognising that confidentiality clauses serve as a useful and legitimate mechanism both during the course of and after employment (for example, to prevent employees from sharing company proprietary information with competitors), the UK government has made it clear that they should not be used to ‘gag’ and intimidate victims of workplace harassment and/or discrimination. The government has confirmed that, when parliamentary time allows, it will provide guidance on drafting requirements for confidentiality clauses and legislate to, in summary:

Continue Reading UK government consultation: UK to legislate on use of confidentiality (non-disclosure) agreements in the workplace

Does pay for regular voluntary overtime need to be included in the calculation of holiday pay? Yes, says the Court of Appeal in a decision which confirms several prior Employment Appeal Tribunal (EAT) decisions that the entitlement to holiday pay under the Working Time Directive (WTD) must include pay for regular voluntary overtime. As we explain below, the outcome is more complex in practice as tribunals will now have to decide, on a case-by-case basis, whether a particular pattern of voluntary overtime is sufficiently regular and settled to fall within the category of regular voluntary overtime.

Background

Under article 7 of the WTD, EU member states must ensure that workers have the right to at least four weeks’ paid annual leave. The WTD does not expressly specify how statutory holiday pay is to be calculated. However, it is well established that holiday pay should equate to ‘normal remuneration’. Normal remuneration has been interpreted to include not only basic salary but also remuneration which is intrinsically linked to the tasks the worker regularly performs.

The EAT held in Bear Scotland v. Fulton and others that compulsory non-guaranteed overtime (i.e., overtime that is compulsory for the employee if the employer requires it but which is not guaranteed to be provided) must be included in the calculation of holiday pay. The EAT also held, in Dudley Metropolitan Borough Council v. Willetts and others, that holiday pay should correspond to normal remuneration so that workers should not be discouraged from taking their annual leave entitlement; in other words, pay during holidays should not be below the rate a worker would expect to receive had they been working. For a payment to be treated as normal, it should have been made over a sufficient period of time on a regular or recurring basis.

The calculation of holiday pay has also been considered by the European Court of Justice (ECJ), which held in Hein v. Albert Holzkamm GmbH & Co. KG that remuneration received for overtime does not, in principle, form part of normal remuneration. However, where the employment contract requires the worker to work overtime on a broadly regular and predictable basis then that overtime should be included in the calculation of holiday pay.
Continue Reading Court of Appeal: holiday pay must include regular voluntary overtime

The UK Government has announced changes to the tax treatment of termination payments following the conclusion of its recent consultation. Draft legislation has now been published which will come into force in April 2018.

The main changes are as follows:

  • All payments in lieu of notice (“PILONs”) will be fully taxable regardless of whether there

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A recent European Court of Human Rights (ECHR) case (Barbulescu -v- Romania) has attracted much publicity in the UK press as giving employers the green light to read employees’ private emails. Is that correct and does this case really change things?

Background

Mr Barbulescu was employed as an engineer in charge of sales. His employer had a strict policy of not permitting private use by employees of its computer and telecommunications systems. Mr Barbulescu was asked by his employer to set up a Yahoo Messenger account so that Mr Barbulescu could communicate with customers.

Sometime later, the employer notified Mr Barbulescu that it has been monitoring his account and they believed that he had been using it for private communications. Mr Barbulescu denied this at which point his employer presented him with a 45 page transcript of all his Yahoo Messenger communications, including private communications with his fiancée and brother. Mr Barbulescu was dismissed for breaching the employer’s policy on personal use of computer systems.

Mr Barbulescu subsequently brought employment claims in the Romanian courts alleging that his dismissal was void since the employer had breached his right to privacy by accessing his private communications. Mr Barbulescu was unsuccessful before the Romanian courts but his case was brought before the ECHR. Mr Barbulescu’s argument was that Romania had failed to protect properly his Article 8 right to respect for his private and family life, his home and correspondence.
Continue Reading Do employers have the right to read employees’ private emails?

A quick reminder that new rules in place as of 11 January 2016 give greater protection to zero-hours workers, protecting them from dismissal and suffering from a detriment if they seek to work for another employer while engaged under a zero-hours contract.

Background

A great deal of debate took place at the time of the 2015 UK General Election regarding the status of zero-hours workers. These are individuals who are engaged under a contract with the employer, under which they are not guaranteed any hours of work. Concern was expressed during the General Election that employers were exploiting these contracts. One of the concerns was the use by employers of exclusivity clauses in zero-hours workers’ contracts which meant that, even though the employer was not required to provide workers with any work, those same workers were prevented from working for another employer.
Continue Reading New Rights for Zero-Hours Workers

In Coles –v– Ministry of Defence, the Employment Appeal Tribunal (“EAT”) has confirmed that agency workers’ rights to be provided with information about permanent vacancies within the organisation in which they work is just that; there is no right to be considered for the vacancy, whether on equal terms with permanent staff or otherwise.…

In the case of CHEZ Razpredelenie Bulgaria, the European Court of Justice (“ECJ”) has extended the concept of indirect discrimination to cover those who do not have a protected characteristic, but who are associated with such people. In this case, a Bulgarian shop owner was protected from indirect discrimination affecting members of the Roma …