Welcome to our February blog post in partnership with highly regarded employment team from 5 Essex Court.
Five from 5
Clare Harrington and Dan Hobbs, employment barristers from 5 Essex Court add their ‘Five from 5’ articles to our blog. Most months one of these articles will also link you through to a longer article on their own blog Five from 5 - In Depth.
We hope you enjoy reading these. If you would like to receive a discount off of your next employment law book from Bloomsbury Professional, look out for our advert further down the blog.
This month's '5 from Five'
Any privacy in emails sent from the office?
In Bărbulescu v Romania (Application no. 61496/08) the European Court of Human Rights examined an employers’ right to look at its employees' emails sent from the office. Personal emails sent from the office fall within the ambit of art. 8(1) of the Convention - the right to respect for private and family life, home and correspondence - but the court found that any interference with that right had been proportionate.
Mr Bărbulescu was an employee of a private company in Bucharest. When he joined the company, he was asked to set up a Yahoo! Account for professional purposes. It stated in the company policy that he was prohibited from using this email address for personal correspondence. In 2007, Mr Bărbulescu was presented with a 45-page dossier of his transgressions of this policy. The Romanian Labour Code allowed employers to monitor the manner in which employees completed their professional tasks. He was dismissed and his appeals in the Romanian courts failed. Mr Bărbulescu then applied to Strasbourg arguing that there had been an unlawful interference with his article 8 right to privacy.
The court considered art.8 to be engaged and approached the case from the perspective of whether the state had breached its positive obligation to protect the applicant’s privacy. The court found that the state, (in the guise of the Romanian Labour Code & courts), had struck a fair balance between the employers’ and the employee’s rights and that the interference was proportionate. The court had particular regard to the fact that the employer only looked at the email account because they believed it contained professional messages and they did not rely on the contents of the personal information in the emails, just the fact that they were personal when deciding to dismiss.
Contrary to what some organs of the press are reporting, this judgment does not entitle bosses to indiscriminately snoop on their employees. What it does state is, where there is a policy that office equipment can only be used for work purposes, it can be proportionate to utilise any evidence to the contrary to justify a breach of that policy. This may permit employers to access private material that would usually fall within the scope of art.8 as the use of that material can be justified.
However, the court has not authorised generalised snooping or the casual use of the contents of personal information for employment disciplinary purposes (for a discussion on the use of employees' comments made on social media in disciplinary proceedings see Game Retail Ltd v Laws (UKEAT/0188/14/DA).
Taxing Injury to Feelings Awards
Victoria von Wachter
Since the beginning of time – well, since the Jackson reforms! - the 10% uplift on injury damages described in Simmons v Castle  EWCA Civ 1288,  1 W.L.R. 1239 has been applied to compensation relating to claims in tort. The uplift was routinely applied to discrimination awards for injury to feelings as discrimination is a statutory tort.
Pereira de Souza v Vinci Construction UK Ltd  I.C.R. 1034 changed all that when the EAT held that the 10% uplift provided by Simmons did not apply in employment tribunals.
This proved to be a false dawn as, in Sash Window Workshop Ltd v King  I.R.L.R. 348, the CA held that under s.124(6) Equality Act the amount of compensation should correspond to the amount which could be awarded by the county court. So back we go to adding the 10%.
Hot on the heels of this debacle comes a new ruling that strikes at the general rule that ‘injury to feelings’ awards benefit from being tax free pursuant to S.406 of the Income Tax (Earnings and Pensions) Act 2003.
In September 2014 the First Tier Tribunal Tax Chamber in Moorthy v The Commissioners for Her Majesty’s Revenue and Customs (TCO3952). Now the CA has upheld the position argued by HMRC and has held that the meaning of ‘injury’ in S.406 is context-specific. It could not be read as exempting all payments made by an employer in respect of an injury to an employee; rather, it was intended to apply only to injuries that led to the termination of employment or to a change in duties or level of earnings.
Accordingly Mr. Moorthy had to stump up tax for the whole of the settlement amount apart from the 30K exemption sum. Clearly the Revenue is short of a bob or two and is looking for new sources of income!
Zero Hours Contracts (protecting the employee's right to work for others)
Change in the employment law landscape in respect of zero hour contracts continues with attempts being made to alter what The Independent referred to in December 2015 as ‘the depressing reality’ of such contracts which, it said, often sees workers having their hours cut for picking up sick children from school or visiting dying family members.
From 11 January 2016 The Exclusivity Terms in Zero Hour Contracts (Redress) Regulations 2015 came into force, following The Exclusivity Terms in Zero Hours Regulations 2015 which were introduced on 26 May 2015. Both sets of Regulations attempt to address some of the mischief of zero hour contracts and provide enhanced protection and rights to those workers party to such contracts.
In essence the 2016 Regulations provide that an employee is automatically unfairly dismissed if the reason or principal reason for the dismissal is that the employee breached a clause in his / her contract which prohibited him / her from doing work ‘under any other arrangement’ (in other words, if he or she worked for another employer). The employee requires no qualifying period of employment to make such a complaint to the employment tribunal.
In a similar vain, the Regulations also provide that a worker who works under a zero hours contract has the right not to be subjected to any detriment by his employer done for the reason that the employee breached a clause in his / her contract which prohibited him / her from doing work ‘under any other arrangement’ (in other words, that he or she worked for another employer).
The Regulations provide for the employee or worker to make a complaint to the employment tribunal and sets out the remedies available.
Mitigation of Loss - Updated Guidance
In the recent case of Cooper Contracting Ltd v Lindsey the EAT has provided further, updated guidance as to the approach to be taken when assessing whether or not a claimant has mitigated his loss.
Mr Justice Langstaff, President of the EAT, confirmed that the burden of proof is on the wrongdoer to prove that a claimant has acted unreasonably in not mitigating their loss. It is not for the claimant to prove that they have mitigated their loss.
In this case, the claimant successfully claimed that he had been unfairly dismissed. Since his dismissal, he had not sought another position elsewhere, but had worked on a self employed basis. The respondent argued that the claimant had failed to mitigate his loss by opting to work on a self employed basis, which had been less lucrative than working as an employee.
Mr Justice Langstaff rejected the suggestion that the duty to mitigate is a duty to take all reasonable steps to lessen the loss and provided a succinct summary of the principles governing mitigation of loss:
(1) the burden of proof is on the wrongdoer – a claimant does not have to prove that he or she has mitigated his or loss;
(2) the burden of proof is not neutral and if no evidence on the point is put before the tribunal by the wrongdoer then the tribunal has no obligation to find it;
(3) what has to be proved is that the claimant acted unreasonably;
(4) there is a difference between acting reasonably and not acting unreasonably;
(5) what is reasonable or unreasonable is a matter of fact;
(6) it is to be determined taking into account the views and wishes of the claimant as one of the circumstances, although it is the tribunal’s assessment of reasonableness and not the claimant’s that counts;
(7) the tribunal is not to apply too demanding a standard to the victim;
(8) the test may be summarised by saying that it is for the wrongdoer to show that the claimant acted unreasonably in failing to mitigate; and
(9) in a case in which it may be perfectly reasonable for a claimant to have taken on a better paid job, that fact does not necessarily satisfy the test. It will be important evidence that may assist the tribunal to conclude that the claimant has acted unreasonably but it is not in itself sufficient.
This case is significant because it imposes a burden on a respondent whilst lifting it from a claimant. The difference between “acting reasonably and not acting unreasonably” may, at first blush, sound like semantics but it is in fact a fine balance of the circumstances of a particular case. On the basis of the reasoning in Cooper Contracting Ltd v Lindsey, that balance will often fall in favour of a successful claimant.
Paying men and women the same - A step in the right direction
The Equality Act 2010 (Gender Pay Gap Information) Regulations 2016, due to come into force in October 2016, will require employers with 250 or more employees to publish data on their gender pay gap.
This will affect the UK's larger employers, who together employ around 1/3 of the total workforce.
The introduction of mandatory reporting, together with the proposal that data provided should be published in sectoral “league tables”, will require employers to focus on both the mechanics of reporting and also on what they need to do to reduce gender specific pay inequality across their organisations.