Articles | Employment bulletin May 2016

This month we look at the dangers of contractual handbooks, the right to privacy at work, expression of religious beliefs and whether non-compete clauses could be in line for an overhaul.

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David Clay

David Clay

Employment Seminar - 14 June 2016

The secrets of an employment lawyer: how to avoid tribunal litigation

Employment Seminar

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At our next Breakfast Briefing on 14 June we will share the secrets of avoiding litigation, with practical commercial advice applicable to all employers. Ian Machray, head of our employment team, will explain how any employer can take steps to reduce the risk of claims whilst still making the difficult decisions that are necessary for a business to succeed.

 

We will provide a light breakfast and there will also be opportunities to network and ask questions of the team.

 

Please note this seminar has proved very popular and is now ‘sold out’, but we are operating a waiting list and may be able to secure a larger venue if we continue to experience high demand. Read more to register your interest and we will be in touch should extra places become available.

Is your staff handbook contractual?

You could be left feeling sick…

Is your staff handbook contractual?

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In an ideal world an employee turning up for their first day in a new job would receive a contract of employment along with a separate, non-contractual, staff handbook. When a staff handbook is contractual then there is a high chance that an employer will run into difficulties should it subsequently want to update its policies and procedures. A recent Court of Appeal decision highlights the dangers.

 

The employer in the case was the Department for Transport (DfT). The DfT’s handbook stated that all terms in ‘Part A’ of its handbook which were ‘apt for incorporation’ would form part of employees’ contracts. The DfT subsequently wanted to amend its absence management policy, which was located in Part A, so as to reduce the number of days’ absence required to trigger certain formal and informal absence procedures.

 

After failing to reach agreement with unions, the DfT announced it would impose its planned changes. The handbook permitted unilateral variations to contractual terms, but only provided such changes were not detrimental. Backed up by the unions, a group of employees asked for a declaration as to which terms now applied.

 

The Court analysed the DfT’s handbook and found that the introductory section, alongside the inclusion of wording referring to ‘your terms and conditions of employment related to sick leave’, indicated that the terms were capable of having contractual force. While terms would not be incorporated into an employment contract if they merely provided a framework for discussions or offered general guidance, the language relating to trigger points was sufficiently clear to be incorporated. Any unilateral variation to the trigger points would be a breach of contract because the changes would be detrimental to employees.

 

Questions concerning incorporation of contractual terms will always depend on the specific wording of the relevant documents, but the Court’s decision demonstrates that referring to key policies as contractual will invite close scrutiny which could limit an employer’s ability to make changes. Best practice is to ensure staff handbooks are entirely non-contractual and that this is expressly stated. This makes amendments simpler and avoids the danger of unintentionally creating contractual terms.

A right to privacy at work 

Can you rely on an employee’s personal photos to dismiss?

A right to privacy at work

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An appeal has been heard this month relating to the right to privacy and whether an employer can rely on an employee’s personal documents to justify dismissal.

 

Article 8 of the European Convention on Human Rights (ECHR) provides that:

 

  • “Everyone has the right to respect for their private and family life, their home and their correspondence”.
  • “There shall be no interference by a public authority with the exercise of this right except as accords with the law and as is necessary in a democratic society … or for the protection of the rights and freedoms of others”.

 

In Garamukanwa v Solent NHS Trust, Mr Garamukanwa was employed by the Trust as a clinical manager. Following the breakdown of a relationship with a fellow Trust employee (Ms Maclean) he suspected that she had entered into a relationship with another colleague, Ms Smith.

 

Mr Garamukanwa allegedly proceeded to harass the two ladies, making complaints and sending emails to them and the Trust alleging ‘inappropriate relations’ within the workplace. Several emails were also sent anonymously from different email addresses.

 

Ms Maclean made reports to the police and the Trust. The Trust spoke to the police, who disclosed photographs from Mr Garamukanwa’s phone of Ms Maclean’s house and evidence which suggested that he was the sender of the anonymised emails.


Mr Garamukanwa was summarily dismissed and the Tribunal found the dismissal to be fair.

 

He appealed, contending that the evidence obtained was private and personal and that Article 8 applied. He stated that the Trust should not have had that evidence and, without it, they would not have grounds for dismissal.

 

The Employment Appeal Tribunal decided that Article 8 was not engaged as:

 

  • Whilst the emails were partly personal in nature, Mr Garamukanwa brought them into the workplace by sending them to work addresses, plus they related to workplace issues.
  • The ladies felt distressed by the emails and the Trust had a duty of care for those employees.
  • The Trust was not obliged to separate out the personal material from the rest of the evidence supplied by the police.
  • Mr Garamukanwa did not object to the use of the evidence during the internal process and actually volunteered additional evidence. The Tribunal viewed this as negating the suggestion that he had any expectation of privacy.

 

The remit of Article 8 is wide and potentially includes emails sent at work where there is a reasonable expectation of privacy. This case was decided on its specific facts and obviously involved very serious allegations against an employee. Employers should still apply caution when looking to utilise evidence of a potentially personal nature in their internal processes and in some circumstances may need to disregard evidence when reaching a decision.

 

Expressing religious beliefs

Can you discipline staff if they go too far?

Expressing religious beliefs

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All workers are protected against discrimination or harassment because of their religious beliefs and have the right to express such beliefs under the European Convention on Human Rights (ECHR). However, conflicts can arise when the manifestation of those beliefs begins to upset or intimidate others in the workplace. A recent decision of the Employment Appeal Tribunal (EAT) offers some useful guidance on how to handle such situations.

 

The case concerned Ms Wasteney, a Christian and manager at an NHS Trust, and her relationship with a junior colleague, a Muslim. The Trust received a complaint from the junior employee about a series of incidents characterised as ‘grooming’. These included Ms Wasteney giving her colleague a book about converting to Christianity, praying with and ‘laying hands’ on her, and inviting her to attend church services. The Trust investigated and concluded that Ms Wasteney had committed serious misconduct by exposing her colleague to improper pressure and unwanted conduct. It issued her with a formal warning. Ms Wasteney brought claims of direct discrimination and harassment, while also claiming that her ECHR rights had been infringed.

 

The EAT dismissed the claims. It found that the reason for Ms Wasteney’s treatment was not the manifestation of her beliefs but the way in which she had manifested those beliefs: to a junior colleague in a vulnerable position who had not consented to her actions. The Trust had not unlawfully discriminated against or harassed Ms Wasteney by issuing her with a warning. The EAT also emphasised that Ms Wasteney did not have an unfettered right under the ECHR to promote her beliefs and this was qualified by the need to take into account the rights and freedoms of others.

 

The decision shows that while employees cannot promote their religious beliefs at work without restriction, employers will still be at risk of claims unless they can show that any sanction was due to the manner in which a belief was expressed rather than the expression of the belief itself. One practical step to reduce the risk of similar religious confrontations is to provide training to all staff on equal opportunities. This may also help establish a ‘reasonable steps’ defence to harassment claims.

Non-compete restrictions

Are they stifling British business?

Non-compete clauses

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In a move which many employers may find unsettling, the government has announced plans to investigate whether non-compete clauses and other post-termination restrictions in employment contracts are holding back British entrepreneurs and start-up businesses.

 

A non-compete clause, which is generally regarded as the most draconian form of post-termination restriction, prevents a former employee from competing with their previous employer or working for a competing business following their exit. Such clauses will not be enforced by the courts unless they go no further than is reasonably necessary (both in terms of duration and geographic scope) to protect a legitimate business interest. Accordingly, they require careful drafting and must be tailored to the specific employee on each occasion.

 

This is a high bar for employers to clear and reflects the need to achieve a balance between the interests of an employer to protect their business and investments and the right of an employee to pursue new opportunities to utilise their skills. However, Business Secretary Sajid Javid has made clear his desire “to break down any barriers that are curbing innovation and entrepreneurship”, which suggests that the government is unhappy with the current position.

 

Both entrepreneurs and businesses have been encouraged to submit their views on non-compete clauses in a ‘call for evidence’ and it will be interesting to see the responses. Start-ups and employers with a high turnover of staff might well prefer more freedom to hire without concern over restraints, while those with a more stable workforce may place more value on protecting their existing assets. We will be monitoring developments, but in the meantime the status quo prevails and employers should continue to consider the use of non-compete clauses in contracts where appropriate.