Hand Morgan & Owen Employment Bulletin – September 2017

TRIBUNAL FEES

At the end of July a landmark case in the Supreme Court ruled that the fee regime for Employment Tribunal claims was unlawful leaving the Government having to refund £32,000,000 worth of fees paid since the regime was implemented in 2013.

The controversial regime saw Claimants having to pay issue fees of up to £250 to issue a claim and a hearing fee of up to £950.  The regime led to a fall in Employment Tribunal claims of over two thirds and was found by the Supreme Court to be preventing access to justice.  The regime was also found to be indirectly discriminatory as statistically a higher proportion of women bring discrimination cases.

The Judgment leaves a significant administrative headache as the Government will need to locate Claimants to refund payments and will also have to deal with circumstances where their fee may have been paid by the Respondent employer or in some cases by an insurer.

The decision made reference to the contrasting effects of the regime for Small Claims proceedings in the County Court (where the fees are much smaller) and there is a suspicion amongst some commentators that a more modest fee regime may be implemented or possibly a requirement for Respondent’s employers to pay a fee.

There is further discussion taking place as to whether or not Claimants who did not bring an Employment Tribunal claim within the required time limits (usually 3 months) because of the fee regime should now be given a further period of time to do so.

Vento Guidelines

In  2002 the Court of Appeal case of Vento v Chief Constable of West Yorkshire Police set out bands of compensation for injuries to feelings in discrimination cases.

These figures have subsequently been revised and a recent piece of Presidential Guidance from the Employment Tribunals has now changed these bands as follows;

• A lower band of £800 – £8,400 (less serious cases)
• A middle band of £8,400 – £25,200 (cases that do not merit an award in the upper band)
• A upper band of £25,200 – £42,000 (the most serious cases) with only “the most exceptional” cases being capable of exceeding £42,000

These bands will be effective for claims issued on or after 11 September 2017 and will be reviewed in March 2018 and then on an annual basis.

INTENTION TO COMPETE.

Aside from written terms it is an implied term of an employment contract that an employee will act in good faith and with fidelity

In the recent the High Court case of MPT Group Ltd v Peel & Ors the Court considered whether departing employees were under a duty to disclose their intention to compete and whether a failure to do so was a breach of good faith.

The Defendants, Mr Peel and Mr Birtwistle were employed by MPT Group Ltd, as a technical manager and technical sales manager respectively until they resigned on 4 August 2016 bringing to an end their employment on 1 September 2016.

After the resignations both were questioned by the firm about their reasons for leaving the company. Both answered untruthfully, Mr Peel said he wanted to spend more time with his child by working as a freelance CAD designer and Mr Birtwistle said he had been offered a panel wiring position. In fact, both intended to go into competition by setting up a company after their 6 month post termination restrictive covenants had expired.

Promptly after the 6 months, the Defendants went into business with a third defendant, MattressTek Ltd, a direct competitor of MPT.

MPT alleged that both employees misused confidential information, solicited each other, failed to answer questions truthfully as to their future plans, contracted with MPT clients during 6 month restrictive covenant and interfered with MPT’s supply chain. They sought various orders from the High Court to prevent Mr Peel and Mr Birtwistle from using the information to gain a competitive advantage.

The main point of interest in the judgment was whether the employees were under a duty to disclose their intention to compete. The High Court judge was not satisfied that they were under a duty to disclose their true intentions to their employer. He was reluctant to hold that the duty of fidelity put a departing employee under a contractual obligation to explain his own confidential and developing plans to set up in lawful competition against his employer, if asked the question. The employer had received the benefit of the 6 month restrictive covenants.

It should be noted that the employees in this case were only moderately senior, had the employees been of a higher standing, for example directors, a different outcome may have been reached.

Monitoring Employee Emails

A recent case in the European Court of Human Rights, Barbulescu v Romania, has given guidance regarding employers monitoring an employee’s personal communications at work, taking into account  Article 8 of the European Convention on Human Rights, the respect for a private and family life,

Mr Barbulescu was an engineer who used his business Yahoo messenger account to send personal messages, breaching company policy. His employer discovered this by monitoring his emails, and he was dismissed. Mr Barbulescu’s was aware that he was not permitted to use his work computer for personal reasons, but his employer had not made him aware of the fact that they were monitoring his communications.

In a complicated judgment, and in a case appealed from a lower chamber of the Court, the Grand Chamber of the Court found that workers have a right to privacy in the workplace, and if an employer is going to monitor their emails and messages, the employer should tell the worker that their communications might be monitored.

The Grand Chamber found that the original Romanian court’s decision was wrong and that the law had not succeeded in achieving a fair balance between the employer’s and employee’s interests. There had been a breach of Mr Barbulescu’s right to private life, and he was entitled to compensation.

Accordingly, if employers are monitoring staff emails they will need to demonstrate a legitimate reason and must tell employees in advance that their communications will be monitored and why.

September 2017

If you would like to read other articles, fact sheets and bulletins on Employment Law go to our Employment page.

For advice and assistance in respect of Employment matters contact Patrick Nelson, Associate on 01785 211411.

Disclaimer

The contents of this article are for the purpose of general awareness only.  They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.  Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.