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Why you cannot monitor personal communication...


Most workplaces are heavily reliant on IT and digital systems which improve the speed and versatility of communications for businesses. Whilst doing so it also provides workers with more opportunities for personal, non-work related, communication which employers often want to keep to a minimum.

The question of whether it is reasonable for an employer to monitor communication systems in the workplace is a constant tug of war between the employer’s legitimate right to protect their business data and prevent abuse of the systems, and the employee’s human rights;  in particular Article 8 ‘Right to respect for private life and correspondence’.

In the particular judgement of Barbulescu v Romania the issue concerned an employee who had been using instant messaging on his work PC, for private communication, despite being aware that it was against the workplace rules and resulted in his dismissal from employment. In January 2016 the European Court of Human Rights judged that the monitoring of content in personal communication in the workplace was not a breach of human rights subject to applying the practice proportionately and within reason.

In a somewhat surprising turnaround the Grand Chamber of the ECHR has reversed the decision on appeal. The facts of the case are that whilst Barbulescu knew that use of the IT systems were forbidden for private use, he had not been notified that the content of the messaging service would be monitored. In the absence of him being able to mark the communication as private he had a right to believe that the correspondence would remain private. The monitoring of the communication was therefore a breach of his right to respect for a family life and correspondence. Additionally the Court noted that the employer had failed to take adequate precautionary measures to prevent there being a substantial interference with his right as many colleagues had seen the correspondence and open conversations about it followed. The employer ought to have limited access to the content to those who needed to know for the purposes of disciplinary proceedings.

Whilst this case deals with a messaging system the principle equally applies to personal emails, text messages, phones calls and potentially the use of certain websites. In order for employers to monitor and review the content of any communication it is not adequate to simply outlaw personal use, it follows that employers must have taken adequate steps to inform employees that there would be invasive monitoring in place and further that such monitoring is applied fairly.

Opsium’s advice is to check and re-draft your employee handbooks where necessary, make sure your data protection policies are up to date and crucially that there has been sound training provided to all staff who have any control mechanism to monitor the activities of other staff members to ensure that monitoring is controlled, proportionate, reasonable and kept as confidential as possible.

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Are you leaving yourself at risk from the provisions of TUPE?


Are you leaving yourself at risk from the provisions of TUPE?

Many employers are blissfully unaware of the rights which are granted under the TUPE Regulations however the risk of going unprepared means you could walk into a legal minefield and face significant financial risk.

In essence the Transfer of Undertakings (Protection of Employment) Regulations 1981 and 2006 provide that in defined situations you are obliged to transfer an employee along with all their key contractual rights such as their role and responsibilities, rate of pay, annual leave entitlement etc without allowing the employee to suffer a detriment such as a reduction in pay or less hours of work.   

So, when does TUPE apply?

Business Transfers

TUPE applies when one business buys another, either in whole or in part, and often when a larger company transfers employees from one company within a group over to another for restructuring purposes.

You may decide to buy a business already in existence and reap the rewards of the established business model. At the same time you need to be aware that you take on the liabilities for the employees that were working for the business before you took it on.

The same rule applies if you are selling your business or part of your business. The employees will transfer which means you are obliged to inform and consult with your affected workforce.

Service Provision Change

A service provision change occurs when a service being provided to a client moves from one employer to another. This could occur in the following situations;

  • An employer chooses to outsource a service that they have previously managed in-house

For example:

You have employed a cleaner directly to do 10 hours per week to look after your business properties. You decide to outsource those 10 hours to an external cleaning company.  

  • An employer chooses to take in-house a service that has previously been outsourced

For example:

You have used the services of an independent bookkeeper and have decided to employ someone directly.

  • A service is transferred from one outsourced business to another.

For example:

A local authority invites transport companies to tender for specific school bus routes every two years. When the tender is won by a new provider TUPE may apply meaning the employees transfer from the old provider to the new provider of the service.  

Inform and consult

Where there is a relevant transfer under TUPE, whether you are transferring in or out, you are under a duty to inform and consult with affected employees. The employee has a right to be notified of a change and be consulted on any measures (changes) that will be occurring as a result of the transfer.

The obligation is on both employers and so it is unwise to simply leave it all down to the new employer as you may be legally liable for a breach of the process.

What are the risks if I don’t comply with TUPE?

At various stages in the transfer process there are potential legal penalties you could face if you ignore the TUPE provisions, in brief these include:

  • £500 per employee for failing to provide a new employer with details of the employees who will be subject to a transfer
  • 13 weeks uncapped pay per employee for failure to inform and consult, both employers may be held joint and severally liable
  • Breach of contract claims if the employee suffers a detriment after a transfer, such as a reduction in pay after the transfer
  • Unfair dismissal claims which can result in thousands of pounds worth of compensation. Both employers may be joint and severally liable for the unfair dismissal of an employee if the employee is dismissed as a result of the transfer  

Employees have an automatic right to transfer where the criteria of a relevant transfer applies. The TUPE Regulations and other statutory provisions provide serious protection for employees and hard hitting financial implications to the unwitting employer who doesn’t comply with their legal responsibilities.

It is always sensible to take legal advice whenever your business is involved in the transfer of business or services.

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Unpaid Lay Off Clauses

Unpaid lay off clauses are a common feature of employment contracts for businesses where a downturn in work is expected such as tourism, leisure, hospitality, farming, construction and retailing.

In a recent case the Employment Appeal Tribunal was asked to determine whether the period of unpaid lay off was subject to a test of reasonableness.

In his judgement Mr. Justice Langstaff confirmed that where there is a contractual provision for lay off there is no need for the period to be reasonable.

Legislation provides a mechanism by which employees have the right to seek a statutory redundancy payment when they have been laid off for a specified period of time. These provisions ensure that there is a natural balance of the employer/employee rights.

If you need advice in how to go about drafting lay off provisions or have any other queries please contact us for further guidance.

Posted by: Rachel Harkin
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References; Proceed with Caution

At a recent Employment Appeal Tribunal (Pnaiser v NHS England and Coventry City Council), the judgment handed down was that the withdrawal of a job offer due to a poor reference concerning previous absence from the workplace as a result of a disability was disability discrimination under the provisions of the Equality Act 2010.

The Council provided a negative opinion on suitability for the role with NHS England due to their experience of significant absence by the Claimant which related solely to her disability. The opinion was presented without evidence and accepted by the employing Respondent, NHS England, with knowledge of the disability suffered by the Claimant at the time. Withdrawal of the job offer followed receipt of the reference without any exploration of evidence to support the opinion provided.

It was determined that the Claimant had been treated unfavourably because of an issue arising in consequence of her disability and so the matter has been remitted to the Tribunal to decide upon an appropriate remedy.

This case serves as a reminder that not only must employers ensure that references are offered with care, but the reliance on the receipt of a reference to offer or withdraw employment must be approached with absolute caution.

Posted by: Rachel Harkin
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Pay equality – will businesses be paying a high price

The recent case of Birmingham City Council v Abdulla and Others has created an increased risk for any UK business that hasn’t implemented and reviewed its equality policies.

Women’s right to receive pay which is equal to men’s has been a rule of law since the Equal Pay Act 1970 came into force. The basic right is that where work is the same, or rated as equivalent, the remuneration must be equal for workers of different sexes. The Equality Act 2010 has since codified discrimination legislation and retained the equal pay provisions.

Despite the length of time the law has been in place it seems that the UK has some way to go before it can be said that women are receiving equal pay to men, a fact which is most evident in light of the claimants in the case of Birmingham City Council v Abdulla and Others. The employee claimants in this case included 170 women and only 4 men, all of whom had ceased employment with the Council between 2004 and 2008.

Under the Equal Pay Act (and subsequent Equality Act) the claimant doesn’t have long to bring a claim; they must register the claim within 6 months of the last day of working for the employer. Most employment law disputes fall to the Employment Tribunal where they are brought and resolved very quickly by comparison to civil court procedures. However, the claimants in this case presented their claim to the High Court where the time in which to register the claim is much longer; the civil court process allows a time limit of up to 6 years.  Had the Court refused to hear the claim, leaving it solely within the Tribunal’s jurisdiction, every one of the 174 claims would have failed for being out of time.

On appeal the Supreme Court decided to allow the claimants to bring the claim through the court system which has resulted in the claimants’ right to be compensated for the difference in pay which accrued for their period of employment – despite the fact that the employment ceased up to 6 years before legal proceedings were issued.

On the face of it, it seems very likely that more and more people are likely to bring claims after their employment has come to an end. A great step in the right direction for addressing equality but a much higher risk for UK businesses.

Businesses should take heed and look carefully at their equality provisions within the work force. By focusing on correcting any unequal pay issues within the business now they may be able to avoid potentially costly litigation in the future. However, businesses must be aware that for any employees who have left employment within the last 6 years there is still a continued risk of a claim being brought.

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