This has been a particularly tricky start to the new millennium, with
complex new legislation and some controversial tribunal decisions making it
ever harder to stay on the right side of the law. Addleshaw Booth’s employment
team takes a fictional look at some of the difficult day-to-day decisions faced
by your average HR department in 2000
Company A has been asked to provide a reference for Miss J. On checking the
personnel file they find it contains details of complaints made about her,
although the complaints have never been fully investigated. Thinking it is
obliged to be truthful, the company discloses the complaints.
AB comments: Company A is
under an obligation to ensure the reference is fair and reasonable. Failure to
do so may result in a claim of misrepresentation and/or negligence by the
potential new employer, and may also be a breach of the implied duty of trust
and confidence that it has to its employee. However, simply disclosing the fact
that complaints were made about Miss J is not enough; an accurate and truthful
reference is not necessarily a fair and reasonable one.
Further, according to the recent case of TSB v Harris it is running a risk
of a constructive dismissal claim by passing on negative information about Miss
J of which she has not been made aware. Therefore, before writing the reference
the company should have made her aware of the complaints on the file and given
her the opportunity to comment.
Company B has received a complaint of sexual harassment involving an
employee who has been sending offensive e-mails to a fellow employee during
working hours. It has an e-mail policy in place and an equal opportunities
policy, both of which, it feels, adequately cover this conduct. The company
says it doesn’t think it can do more and takes no further action.
AB comments: Company B has
not necessarily done enough to combat a claim of sexual harassment. Having
policies in place and bringing them to the attention of staff is obviously very
important but may not be enough to avoid the company being liable for an act of
The EAT emphasised in the case of Canniffe vs East Riding of Yorkshire
Council earlier this year that, in discrimination cases, employers need to
consider what further reasonably practicable steps they could take, such as
speaking to the individual concerned once they become aware of the problem, and
ensuring staff receive training in equal opportunities issues. It is no defence
simply to argue that those further steps would not have prevented the
Company C has just finished an investigation into discrepancies in the
filing of an expenses claim by Mr J. It is satisfied that its disciplinary
procedure has been thorough and fair and that Mr J is guilty. Mr J has a
blameless record and is a long serving member of staff and, feeling it is a
borderline decision, the company decides it dare not dismiss him.
AB comments: Company C may be
concerned that an employment tribunal may take the view that Mr J’s conduct is
insufficiently serious to justify dismissal. But even if its decision was
deemed "wrong" in the eyes of an employment tribunal, it would not
necessarily mean the dismissal was unfair.
Provided it had followed a fair procedure and had a genuine belief that the
employee is guilty, the tribunal could not substitute its own decision for that
of Company C.
E-mail and Internet Abuse
Company D instigates a policy to monitor staff e-mails to protect the
company’s computers from viruses. Accordingly, it starts to intercept those
staff e-mails which have attachments in order to check they are not a threat.
It has an e-mail policy in which it reserves the right to do this.
AB comments: New rules were
introduced in October 2000 which regulate this area (the Telecommunications
(Lawful Business Practice) (Interception of Communications) Regulations 2000).
These regulations dispense with the need to get consent to monitoring in
specific circumstances, which include monitoring to ensure the effective
operation of the system.
However, the company must make all reasonable efforts to inform its staff
that monitoring may be carried out. Therefore, while having an adequate e-mail
policy in place is good practice, it should also go further and ensure it
brings the policy to the attention of its employees.
Company E is being taken over and it is engaged in a consultation process as
required by Tupe. But a number of staff object to transferring to the purchaser
of the business because their working conditions will be worse than at present.
The company is concerned about the liability it may face if they resign because
there are more than 50 of them and it could prove costly.
AB comments: Following the
recent case of University of Oxford v Humphreys, if the objecting employees
resign they may be able to bring a claim for damages for wrongful dismissal or
unfair dismissal on grounds that the proposed transfer, on worse terms,
constitutes a constructive dismissal. If their claims are upheld, any liability
arising would remain with company E, because the employees’ contracts would not
transfer where they have objected to the transfer. This means that it is
particularly important Company E obtains an indemnity from the purchaser against
this potential liability.
Company F has an e-mail policy that allows the company, which is a private
organisation, to track and read e-mails sent by members of staff, if it is
necessary as part of an investigation into abuse of its e-mail system. But with
the coming into force of the Human Rights Act 1998, which gives rights of
privacy to individuals, the company is concerned it is in danger of breaching
its employees’ privacy rights.
AB comments: The Act does not
create direct obligations towards staff outside the public sector and,
therefore, Company F is not covered by the Act directly. But employment
tribunals and courts are now required to interpret existing UK employment law
in line with the principles of the European Convention on Human Rights and its
associated case law.
This means that if Company F ends up in a dispute with an employee, the
tribunal or court would consider the way in which it had gathered information
about the employee in the light of human rights legislation.
Article 8 of the Convention provides for the right to respect for private
and family life, home and correspondence and this extends to the workplace. The
case law under the convention, however, makes it clear that employees cannot
expect privacy if they are made aware that their employer reserves the right to
carry out monitoring.
Company F appears to have a legitimate purpose for monitoring, and has an
e-mail policy in place that reserves the right to monitor in these
circumstances. Therefore, provided it brings the policy to the notice of staff,
it should be able to defeat their expectation of privacy and so avoid breaching
their privacy rights.