Key employment law developments: monitoring employees; equal pay; jurisdiction clauses

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Summary: Our October blog outlines the key employment law developments over the last month, with cases including monitoring of employee communications, equal pay, the rights of pregnant workers, early conciliation certificates and jurisdiction clauses in employment contracts. We also outline other points of note including the General Data Protection Bill and upcoming changes to the taxation of termination payments.

Monitoring employees’ personal messages on work-related accounts can infringe Article 8 right to privacy

The Grand Chamber of the European Court of Human Rights, overturning its first instance decision, has found that there was a breach of an employee’s Article 8 right to privacy under the European Convention on Human Rights, when his employer monitored personal messages that he had sent on a work-related messenger account.  

The Court set out a number of relevant factors for determining whether monitoring an employee’s personal communications at work breaches his or her right to privacy. These include whether advance unequivocal notice of the nature and extent of monitoring has been given to the employee, the extent and degree of monitoring, and whether the employer has provided legitimate reasons to justify the extent of monitoring – monitoring actual content of messages rather than just the flow of communication requires greater justification.

Why this matters?

The UK already has a legal framework dealing with monitoring, not least under the Data Protection Act 1998. The Information Commissioner’s Employment Practices Code sets out recommendations for employers on monitoring employee communications which broadly mirror the factors described by the Court in this case. The issue of appropriate monitoring comes even more into focus under the General Data Protection Regulation, which comes into force in May 2018 and which places even greater emphasis on data subjects’ rights.

A group of predominantly female retail employees can compare themselves to a mainly male group of depot employees for equal pay claim purposes

The EAT has recently upheld an Employment Tribunal decision that Asda’s female retail staff, who are bringing equal value claims, can compare themselves to mainly male distribution centre staff who work at different geographical establishments. It was found that, despite the employment terms of retail and distribution employees being set by reference to different processes, there were “common terms” generally between the retail staff and their distribution staff colleagues for the purposes of claiming equal pay. Having “common terms” is a requirement when a claimant wishes to compare themselves with someone who works at a different establishment to themselves. In addition, the EAT said that the ET was correct to find that there was a single source within Asda which set both the retail and distribution staff pay and conditions. This satisfied the alternative test to bring an equal pay claim directly under Article 157.

Why this matters?

We understand that Asda is likely to appeal the EAT’s decision, so we can expect more analysis from the higher courts on these issues. However, the case is a notable example of equal value claims being brought as a result of gender occupational segregation – that is,  where one type of job role in an organisation is done mainly by women, who claim that their work is of equal value to a different, higher paid job role that is done predominantly by men.

Pregnant workers should be protected against dismissal from the point of becoming pregnant, not when they notify their employer

The Advocate General has recently considered when pregnant women start to get protection against dismissal under the Pregnant Worker’s Directive. Her Opinion says that protection against dismissal should start when the woman becomes pregnant, not when the woman informs the employer of her pregnancy.

Why this matters?

This Opinion could lead to a situation where an employer falls foul of the legislation by dismissing a pregnant worker without actually being aware of the pregnancy. The case now goes to the ECJ for final determination. The Advocate General has suggested that the ECJ deal with this issue of apparent unfairness for employers, so we await the ECJ’s judgment for further clarification.

One ACAS early conciliation certificate can name two separate respondents

The EAT has held that where a claimant brings a claim against two separate respondents, one single ACAS early conciliation certificate which names both respondents is valid. In this case, the certificate remained valid, despite the fact that the Claimant had initiated early conciliation by completing only one prescribed form which named both prospective respondents, contrary to the EC Procedure Rules which require a separate form for each prospective respondent.

Why this matters?

This is the latest in a number of cases which demonstrate the reluctance of Tribunals to dismiss proceedings based on a failure to comply with requirements of the EC process. In this case, it was emphasised by the EAT that the purpose of the EC process is not to encourage satellite litigation. Employers should, therefore, carefully consider whether it is worthwhile incurring costs by challenging the validity of an early conciliation certificate.

Exclusive jurisdiction clause in Ryanair cabin crew employment contracts was unenforceable

The ECJ has decided that airline cabin crew, who were required to live within one mile of their home base in Brussels and started and ended their day at their home base, were entitled to bring statutory employment claims in the Belgian courts. This was despite the fact that the crews’ employment contracts were stated to be governed by Irish law and expressly conferred jurisdiction on the Irish courts. Under the Brussels Regulation, which specifies which country’s courts should hear litigation claims, the test in employment disputes is usually to identify the place where the employees habitually carry out their work. In this case, that was Belgium. Under the Brussels Regulation, an express jurisdiction clause in an employment contract which is agreed before litigation occurs, such as the one in this case, is unenforceable.

Why this matters?

This case acts as a reminder that, irrespective of what is stated in the employment contract, factors such as where an employee spends their working time and carry out their work activities will usually determine the appropriate jurisdiction where employees can bring employment claims.

Nogueira and others v Crewlink Ireland Ltd; Moreno Osacar v Ryanair


Round-up of other developments

Data Protection Bill: The Data Protection Bill, which will replace the Data Protection Act 1998, has had its first reading in the House of Lords. The second reading is due to take place on 10 October 2017. The aim of the Bill is to ensure that UK and EU data protection regimes remain aligned following Brexit. You can read more background information in this blog.

Termination payments reform: The Finance (No. 2) Bill 2017 was published on 13 September and is open for consultation until 25 October 2017. The Bill includes provisions to treat all payments in lieu of notice as earnings from April 2018. This means that employers will no longer be able to make a tax free PILON where there is no PILON clause in the employment contract. Among other things the Bill will also subject all termination payments above £30,000 to employer’s NICs, and will remove foreign service relief on termination payments.

Corporate Governance: BEIS has published its response to the Government’s Green Paper on corporate governance reform. Areas for proposed reform include increasing reporting and control over executive pay, examining the use of share buybacks and strengthening the voice of employees.

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