October Employment Law Update

Court rules email monitoring breached human rights

An employer breached an employee’s human rights when it read personal emails sent from the employee’s work email account, says the ECtHR. Also, new legislation is in force from October and, in case law, the EAT departs from the traditional approach to the burden of proof in discrimination cases.

Monitoring breached privacy rules

Organisations should review their policies covering email monitoring following a decision by the European Court of Human Rights on the lawfulness of an employer’s actions. The ECtHR had previously found that an employer had not committed a human rights breach by reading emails sent from an employee’s personal account. However, this decision has now been overturned.

In the case, Barbulescu v Romania, the court found, among other things, there was no evidence that the employer had informed Barbulescu in advance of the extent to which monitoring would be undertaken. It also found that insufficient assessment had been undertaken by national courts on the legitimacy of the justification behind the monitoring. The employer was, therefore, found to have breached the employee’s right to privacy.

Despite this ruling, organisations are permitted to continue monitoring emails provided certain criteria are met. Guidance from the Information Commissioner’s Office helps organisations ensure that monitoring is done without risks to the right to privacy.

October legal changes

In an amendment to the law on whistleblowing, the list of ‘prescribed persons’ outside of a worker’s organisation to whom a disclosure may be made has been updated, with effect from 1 October 2017, via the Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2017.

The Employers’ Duties (Miscellaneous Amendments) Regulations 2017 came into force on 1 October 2017, setting out important dates for new employers from October 2017 in relation to the duty to auto-enrol employees on to workplace pension schemes.

In previous years, October would also signify the introduction of increased national minimum wage rates. However, this year saw a shift from October to April review dates, meaning that there will no longer be an increase to the rates annually in October.

Finance Bill published

The second Finance Bill 2017 has now been published, containing many of the measures that were removed from the original Finance Bill 2017 due to limited time before the general election. There are a number of employment provisions which organisations should be aware of. 

The second Bill contains the new rules on simplification of taxation of termination payments, due to take effect on 6 April 2018. From this date, all employees will pay income tax and National Insurance on payments in lieu of notice, regardless of whether there is a contractual right to this payment. Other provisions include an increased and extended income tax exemption of £500 for employer provided pensions advice, new tax bands for ultra-low emissions company cars and the introduction of a date for making good benefits in kind that are not payrolled.

Case law

In Efobi v Royal Mail Group, the Employment Appeal Tribunal provided clarification on the burden of proof relating to claims of discrimination, holding that an employment tribunal had applied the incorrect test to the claimant’s evidence. The onus is not on the claimant to ‘prove’ facts from which the employment tribunal can infer that discrimination took place in the absence of any other explanation, the EAT said, but for the employment tribunal to decide - from all of the evidence available to it - whether discrimination occurred. 

In Olukanni v John Lewis plc, the Employment Appeal Tribunal agreed with the original employment tribunal decision that an employee was not disabled for the purposes of the Equality Act 2010. Olukanni suffered from a condition which affected her communication abilities and, in order for her claim to proceed, had to convince the employment tribunal that her disability fell within the required definition under the Act. Part of that definition requires a condition to have a “substantial” adverse effect on a person’s ability to perform normal day to day activities. The EAT found that her ability to undertake new tasks was affected which it did not consider to be a ‘substantial’ adverse effect. 

On 27 and 28 September, the Employment Appeal Tribunal heard Uber’s appeal on the employment tribunal decision that two drivers were in fact workers despite Uber classifying them as self-employed. Once the decision is delivered, it will be the first appellate decision of the many gig economy cases that have been heard in recent months, the latest involving “self-employed” drivers for taxi and courier firm Addison Lee who were also found to be workers.

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