Employment Law Newsletter
As the days grow longer and warmer, we set out in this newsletter some recent cases and developments in employment law.
In a decision widely reported in the press, the Employment Appeals Tribunal in Lock –v- British Gas UKEAT/0189/15/BA has confirmed that results-based commission should be included in the calculation for holiday pay.
Mr Lock was employed by British Gas as a salesman. His remuneration package included a basic salary and commission based on the number and types of contracts he persuaded customers to enter into. The amount of commission he earned was greatly in excess of his basic salary. His holiday pay consisted only of basic salary. When he was on holiday, he could not earn commission.
The EAT held that this was unlawful. It held that UK domestic law should be interpreted in a way which was consistent with European Union law, namely the Working Time Directive. The European Union Court of Justice had held, in a previous case, that results-based commission should be taken into account in calculating holiday pay. There were no exceptional circumstances which would justify departing from that decision.
Monitoring Employees’ Use of the Internet
Is the right to respect for private life and correspondence breached if employers monitor employees’ personal communications at work?
No, subject to reasonableness and proportionality, according to the European Court of Human Rights in Barbulescu –v- Romania.
Mr Barbulescu was an engineer who used his business Yahoo Messenger account to send and receive personal messages with his fiancee and his brother, including messages about his health and sex life. This was in breach of his employment contract. His employer, discovering this accidentally, dismissed him. Mr Barbulescu argued that the Romanian courts should have excluded all evidence of his personal communications on the grounds it infringed his Convention rights to privacy.
The European Court of Human Rights held that Article 8 (right to respect for private life and correspondence) was engaged, but that the Romanian courts were entitled to look at that evidence in deciding whether the dismissal was justified. The European Court was swayed by the fact that the Romanian court judgment did not reveal the precise content of the personal messages, but only the fact that they were personal messages. The Court recognised the need for employers to be able to verify that employees are completing professional tasks during working hours.
Employer Vicariously Liable for assault by Employee
In Mohamud v WM Morrison Supermarkets plc  UKSC 11, the defendant supermarket was held vicariously liable in tort for an unprovoked, and apparently racially motivated, assault carried out by a member of its staff on the claimant customer. The employee had abused the claimant, followed him to his car and seriously attacked him. The employee had also ignored instructions from his supervisor, who came on the scene and tried to stop him.
The Supreme Court held that the ‘close connection’ test had been fulfilled. In particular: (i) it had been the employee’s job to attend to customers and to respond to their inquiries; (ii) his conduct in answering the claimant’s request in a foul mouthed way manner and ordering him to leave had been inexcusable but within the ‘field of activities’ assigned to him; (iii) what happened thereafter was an unbroken sequence of events; (iii) there had been a significant connection between the employee’s employment and his behaviour towards the claimant; and (iv) Morrisons had entrusted their employee with that position and it was just that as between them and the claimant, they should be held responsible for his abuse of it.
EHRC Guidance on Discriminatory Advertising
The Equalities and Human Rights Commission has published new guides on advertising for jobs, goods, facilities and services, and accommodation (see www.equalityhumanrights.com/sites/default/files/publication_pdf/EHRC%20Advertising%20-%20Equality%20Law%2012.pdf).
Written in plain English, the guides set out, for example, that employers should avoid words such as ‘young’, ‘mature’ and ‘recent graduates’ which imply a certain age is a requirement for a job which could constitute age discrimination. Job titles which imply a job may be done by men or women only should also be avoided, such as ‘handyman’ or ‘barmaid’; instead ‘maintenance worker’ or ‘bartender’ should be used. Also to be avoided are images which imply jobs are associated with particular groups such as photographs showing only male mechanics or only female nurses.
Knight-Webb Solicitors are specialists in employment law. We pride ourselves in providing a first-rate, cost-effective and personal service to clients. We can advise you on employment law matters and update your policies and procedures, taking into account all the recent and upcoming changes in the law, including those outlined in this Newsletter.