January 2018

Welcome

Hello, we would like to share with you the latest news within Cluer HR, as well as keeping you up to date with developments in the world of HR and employment law as they occur.

It’s all part of the service. We hope you find it useful. Your comments and suggestions are always welcome.

Is it ok not to renew a fixed term contract under fixed-term employees regulations?

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Not always, held the EAT in Royal Surrey County NHS Foundation Trust v Drzymala. A locum consultant doctor had been employed on a series of fixed-term contracts. A permanent vacancy arose before her contract was due to expire. She was interviewed, along with another candidate, but not appointed. Subsequently she was given notice that her fixed term contract would not be extended. The employer’s letter made no mention of a right of appeal or any alternative employment with the Trust. The Claimant lodged a grievance and was eventually allowed an appeal. An appeal panel concluded that an earlier appeal would have made no substantive difference as to the outcome. A tribunal found that her dismissal was unfair and the employer appealed. It relied in particular on its contention that it had complied with the non-discrimination regime in the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. As a resyktm the employment tribunal was wrong to conclude that the employee was unfairly dismissed. The EAT rejected this proposition. The general law on unfair dismissal applies to dismissals which arise from non-renewal of a fixed-term contract. The question of fairness of a dismissal depends in the normal way on the facts of the case and the application of the fairness test in section 98(4) of the ERA 1996. Dismissals by non-renewal of a fixed-term contract are often potentially fair for “some other substantial reason”, but they are not a special case attracting different considerations from those normally considered under section 98(4). In this case, the tribunal was right to consider that the Claimant had been poorly treated by the employer when it failed to pursue a discussion about alternative roles and to provide the Claimant with a timely right of appeal. The finding of unfair dismissal was therefore upheld.

If you’re deliberating over a similar issue with your business, please get in touch with us at [email protected]

Does covert surveillance at work breach privacy rights?

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Yes, held the European Court of Human Rights in Lopez Ribalda & Ors v Spain. A supermarket installed surveillance cameras to address suspected theft. Workers were only told about the visible cameras, not others which had been placed covertly. Several employees were dismissed relying on covert images. They alleged breach of Article 8 and data protection rights. A Spanish court held that the measure was justified, appropriate, necessary and proportionate. No other equally effective means of protecting the employer’s rights would have interfered less. The ECHR disagreed: Article 8 had been violated. Video surveillance in the workplace is a considerable intrusion into private life; it extends to personal appearance. A fair balance between the parties’ rights had not been struck. To comply with data protection laws, employees must be “explicitly, precisely and unambiguously” informed of the existence of a personal data file, how data will be processed, the purpose for collection and the recipients of the data. The case is distinguished from Antovic and Mirkovic v Montenegro and Kopke where no breach of Article 8 was found: that data was for a specific purpose, was confined, controlled and time-limited.

Can Working Time Rest Breaks be aggregated?

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No, held the EAT in Crawford v Network Rail Infrastructure Ltd. Regulation 12 of the Working Time Regulations 1998 provides for a rest break of not less than 20 minutes if a worker’s daily working time is more than 6 hours. Regulation 21(f) provides that a worker in Railway Transport does not enjoy the protection of Regulation 12. Instead, under Regulation 24(a), the worker is entitled to an equivalent period of compensatory rest. Mr Crawford worked as a relief cover signalman at various signal boxes in the South East. All (save one) boxes were single manned. Although Mr Crawford was not always busy, he was required to continuously monitor and to be on call to do things when trains were going through. He could in practice, if he wished, take short 5 minute breaks from his workstation which would amount together to well in excess of 20 minutes over the shift as a whole. But on day shifts it was not possible to have a continuous 20 minute break. The employer argued it could aggregate these shorter periods in order to meet the 20 minute break requirement. Indeed, it argued, this was more beneficial, from a health and safety point of view. Relying on Hughes v The Corps of Commissionaires Management Ltd, the EAT held that the employer’s system was not compliant. In Hughes the Court of Appeal held that there should be a proper uninterrupted break from work during a rest period and, so far as possible, that break should last at least 20 minutes. Otherwise it would not be an equivalent period of compensatory rest. It was important that, during the rest period, the worker was free from work. Accordingly, as there was no opportunity on Mr Crawford’s shifts for a single continuous break from work of 20 minutes, Network Rail were in breach of their obligations under the Working Time Regulations. If you’re concerned about meeting these regulations in your business, please get in touch with us at [email protected] or call 01386 751 740

Can an employer be vicariously liable for data protection breaches?

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Yes, held the High Court, in Various Claimants v Wm Morrisons Supermarkets plc.

In early 2014, the personal details of almost 100,000 Morrisons employees were deliberately published on the internet and sent to three newspapers. The culprit, a senior IT manager, had harboured a grudge against his employer following disciplinary action the year before. Over 5,500 employees brought claims for breach of statutory duty in relation to the Data Protection Act (DPA), the misuse of private information and breach of confidence. The High Court first considered Morrisons’ primary liability under the DPA. The IT manager responsible had been given access to the data as part of his role, it was needed for an audit, but it had been published from his home, on his personal computer, outside working hours and with the deliberate intent of harming Morrisons. The court identified only one breach of the DPA “Morrisons had not organised the deletion of the data from his work computer” but this failure did not cause any loss, the rule being aimed at the inadvertent retention of data rather than its deliberate misuse.

As for vicarious liability, the issue was whether the employee’s actions had been in the course of their employment, that is, whether their wrongful conduct was closely connected to their authorised duties. The manager had been entrusted with the data, and received it and copied it as part of his role. The court held that the breach (the later publication) was part of a seamless and continuing sequence of events, and there was sufficient connection with his employment and the wrongful conduct.

Finally, the court granted Morrisons the right to appeal on the basis that the employee’s aim had been to cause loss to his employer, and this decision could render the Court a witting accessory to his criminal actions.

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