Welcome to Walbrook Law’s May 2016 employment law bulletin.  This month we’ve highlighted some recent cases on: disciplinary proceedings and religious discrimination; the contractual status of staff handbooks and employment policies; enforceability of restrictive covenants; private emails and human rights in employment disputes; and some recent news and statistics on zero hours contracts and shared parental leave.

Ms Wasteney was a Christian worker employed by the NHS Trust. She was alleged to have ‘groomed’ a junior Muslim colleague by, among other things, praying with her and laying her hands on her.
 
The colleague said that she had begun to feel ill as a result of Ms Wasteney’s abuse of her managerial position. There was an investigation and Ms Wasteney was given a final written warning (reduced to a first written warning on appeal). Professional boundaries had been blurred. But Ms Wasteney then brought a tribunal claim, alleging discrimination and harassment because of/related to her religion or belief.
 
The merits of her claim hinged on the reason she was disciplined. If it had been for manifesting a religious belief in consensual interactions with a colleague, then that would have been within her rights, and therefore religious discrimination to discipline her for it. But this wasn’t the case; she had been disciplined for her unwanted and unwelcome behaviour towards a colleague. That was something different altogether, particularly taking into account Ms Wasteney’s more senior position. Her claim failed at the tribunal and at the Employment Appeal Tribunal.
 
There was also a human rights angle. Had Ms Wasteney’s right to freedom of thought, conscience and religion been breached? No. That right doesn’t give people ‘a complete and unfettered right to discuss or act on [their] religious beliefs at work irrespective of the views of others or [their] employer’, the tribunal said.
 
So the way in which religion or belief is manifested is all-important in determining whether disciplinary action is appropriate or not. It’s something that takes a careful analysis for an employer facing such issues in the workplace.

Employers should have a whole host of company policies, on everything from equality to data protection. While they’re expected to be followed, they are not necessarily contractual. And if they’re not contractual, it’s more straightforward for employers to change them.  
 
In Department for Transport v Sparks, the employer’s attendance management policy, contained in its handbook, said that disciplinary action in respect of cumulative short-term absences could only begin once an employee had hit the trigger point of 21 days off in any 12-month period. The employer tried to introduce a new policy which was less favourable to staff.
 
Ms Sparks and her colleagues argued that the original policy remained in place because it was contractual and couldn’t be unilaterally varied by the employer.
 
The Court of Appeal found in the employees’ favour. There was a distinct contractual bias to  the way in which the handbook was referred to in the employer’s  employment documentation, the Court held. The handbook was said to set out ‘many of your terms and conditions’. And its chapter on health stated that it set out ‘your terms and conditions of employment relating to sick leave’ and ‘…to the management of poor attendance’.
 
The contents of the handbook constituted more than good practice guidance. The policy that Ms Sparks and her colleagues had sought to rely on was, the Court said, apt for incorporation as a contractual term.
 
As fact-specific as this case is, it raises some universal points about aligning your paperwork with perceptions. Do you know what contractual status your policies and procedures have? Do your employees know? And are your company employment documents – your contracts, policies and handbook - fit for purpose? If not, it’s time for a review.

Do you keep employees’ restrictive covenants under review? As business needs and other circumstances change, you could find that covenants become unenforceable.
 
But in Bartholomews Agri Food v Thornton, the High Court confirmed that a restrictive covenant that wasn’t enforceable when the contract was entered into with didn’t become enforceable when the employee was promoted to a role that would justify a restriction along those lines. In other words, enforceability is judged as at the time the contract is signed.
 
For Mr Thornton, that time was at an early stage in his career when he was a trainee agronomist. In his contract was a clause that read:
 
"Employees shall not, for a period of six months immediately following the termination of their employment be engaged on work, supplying goods or services of a similar nature which compete with the Company to the Company's customers, with a trade competitor within the Company's trading area, (which is West and East Sussex, Kent, Hampshire, Wiltshire and Dorset) or on their own account without prior approval from the Company. In this unlikely event, the employee's full benefits will be paid during this period."
 
An inappropriate restriction to place on a trainee agronomist and unenforceable, said the High Court. And even though, by the time Bartholomews wanted to rely on the clause, Mr Thornton was a full-fledged agronomist, that didn’t convert the clause into a reasonable, enforceable one. Aside from the fact that the clause was still too widely drafted to work, it was unenforceable at the beginning and it remained unenforceable, regardless of Mr Thornton’s promotion.
 
A stark reminder, then, that not only do employers need to get your covenants right to begin with, but also, crucially, you should review them periodically and as employees rise through the ranks. Revised contracts of employment, with new restrictive covenants, should always be considered for employees being offered significant promotions, particularly when the individual’s access to the employer’s confidential information and client base is expected to change with their enhanced role.

Mr Garamukanwa was employed by the Trust as a clinical manager. After his relationship with staff nurse Ms Maclean ended, he suspected that she had become involved with a female colleague. And that’s when anonymous action against the two women began, involving a false Facebook account and malicious emails sent to management. 

Ms Maclean considered that Mr Garamukanwa was stalking and harassing her. There was a police investigation, but no charges brought. Evidence from that investigation – which included photographs on Mr Garamukanwa’s phone connecting him to the malicious emails - was handed over to the Trust and used in subsequent disciplinary proceedings. Mr Garamukanwa was dismissed for gross misconduct. 

He went on to lose his claims for unfair dismissal, unlawful race discrimination, victimisation, harassment and wrongful dismissal. But the key question for the Employment Appeal Tribunal (EAT) was whether the NHS Trust had, by looking at ‘private’ material that Mr Garamukanwa had sent to Ms Maclean and photos held on his phone, infringed his human rights. He claimed interference with Article 8 – the right to respect for private and family life, home and correspondence. The tribunal, he said, had not distinguished between public material (the anonymous emails sent to his employer) and private material (such as emails to Ms Maclean about his feelings and their relationship). He claimed that he had a reasonable expectation that the latter would remain private. 

No, said the EAT. There was no reasonable expectation of privacy and therefore Article 8 didn’t apply. Mr Garamukanwa’s behaviour had effectively turned material about a personal relationship into a workplace issue. There was no need to draw a distinction between what he claimed was ‘public’ and ‘private’. The police hadn’t done so, and had allowed the Trust to use all of the material without distinction. 

Also relevant were the facts that:
-    not only did Mr Garamukanwa not object to the evidence being used in the investigation and disciplinary, he also volunteered additional material. This negated the suggestion that he had any expectation of privacy in any of the material;
-    once Ms Maclean had complained about feeling harassed, there must have been an expectation that she would complain about any further correspondence (even if those emails were sent to her private address and were about their previous relationship). Mr Garamukanwa couldn’t expect to be able to control what she did with emails she received;
-    the content of emails sent to Ms Maclean strayed beyond the purely personal; they touched on workplace issues too. 

A fact-specific case, but one that illustrates very well some of the difficult issues that employers face from time to time in relation to personal emails sent in connection with employment disputes.

One month on from the introduction of the National Living Wage (NLW), views are being sought on where the National Minimum Wage rates (including the NLW) should be set from April 2017.
 
One area of interest to the Low Pay Commission is how the NLW’s introductory rate of £7.20 is affecting workers, employers, the labour market and the economy; how  businesses are adjusting to this, and how it’s impacting pay, terms and conditions, income, hours, employment and competitiveness.
 
The consultation is open for responses until 29^th July 2016.
 
And if you need any help with minimum wage calculations, the Department for Business, Innovation & Skills has just published an updated guide.

Zero-hours contracts have again been in the news, this time because one employer has offered staff the chance to move away from them and onto fixed hours.
 
McDonald’s, said to be one of the biggest users of zero-hours contracts in the UK, made the decision in response to difficulties its staff were having in getting loans, mortgages and mobile phone contracts. It’s been reported that McDonald’s workers have the option of contracts that guarantee a minimum of 4, 16 or 30 hours per week.
 
Perhaps the most interesting part of this story is that, during the trial phase, take-up wasn’t that high. Apparently, about 80% of staff chose to stay on zero-hours. Of the rest, most went for the maximum 30 hours.

It goes to show that despite the criticisms, there remains a need for the sort of flexibility that zero-hours contracts offer – and that goes for employees as well as employers.

A year on from the introduction of Shared Parental Leave (SPL), recent statistics suggest that few families have chosen to divide up time taken off work. 
 
Fifty weeks’ leave can be shared, enabling women to return to work earlier than they might otherwise, and their partners to spend more time with their children in the early years. But according to research by My Family Care and the Women’s Business Council, just 1% of men (note men, not eligible men) who were the subject of the survey shared leave with their partners. Financial affordability, lack of awareness, and the unwillingness of women to share their maternity leave, were found to be the main reasons. But the indications are that many more (63%) men would be likely to choose to take SPL in respect of their future children, so we may see an increased take up of this statutory right in future years.

Walbrook Law is a specialist employment law firm based in the City of London, acting for employers and senior executives.

We advise employers across a range of sectors on all employment issues affecting their businesses. We are highly experienced in advising on restructuring, redundancy, performance management and disciplinary/termination issues. We are also experts in conducting employment tribunal litigation and dealing with complex areas of employment law such as restrictive covenants and employee competition, whistleblowing, FCA and other regulatory employment issues, and the Transfer of Undertakings Regulations (TUPE).

We also have a thriving practice acting for senior executives, including board directors of both private and publicly listed companies, partners/LLP members of professional services firms and senior employees working in all industry sectors, including banking, financial services, insurance and media. We have an established reputation in the City as leading advisers on the negotiation of senior executive service agreements and exit terms, partner/LLP member appointment/retirement terms and other contractual matters such as employee bonuses, commission arrangements and restrictive covenants.

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