Listed below are brief summaries and outline practical points arising out of the cases referred to during the Spring Symposium Question Time panel session, which we hope you will find useful. It is not our intention in this summary to deal with all of the technical legal issues which arise out of these recent cases, or to cover all of the practical implications.
- Barbulescu v Romania  I.R.L.R. 235
Monitoring employee emails
Monitoring of an employee's internet usage and the use of their email messages in disciplinary proceedings can sometimes be a proportionate interference in an employee's rights to privacy. Barbulescu v Romania dealt with the right to private and family life, protected by Article 8 of the European Convention on Human Rights. The employer accessed emails sent by the employee to his fiancée and brother from the Yahoo email account set up at his employer's request to deal with client enquiries. The court decided that accessing these emails was lawful.
Practical point: it is important to have clear policies about internet use and email privacy, so that employees know what is acceptable. Whilst this case may seem to give employers free rein to access employee communications, that's not the case. Employers also have duties under:
- the Data Protection Act 1998;
- and the Regulation of Investigatory Powers Act 2000.
- Mohamud v WM Morrison Supermarkets plc  UKSC 11
Vicarious Liability for employee misconduct
The Supreme Court held a supermarket vicariously liable for an employee's unprovoked violent assault on a customer.
Whether an employer will be vicariously liable will depend on whether there was a sufficiently close connection between the employee's employment and the wrong doing, but social policy considerations come into play as well.
Practical point: training staff on acceptable behaviours in the workplace is an important element in managing employees.
- Chesterton Global Ltd and another v Nurmohamed UKEAT/0335/14
What makes a disclosure in the 'public interest'?
This case illustrates that a relatively small group (in this case, 100 senior managers) may be sufficient to satisfy the public interest test requirement in a whistleblowing case. In any event, a worker need only demonstrate that they reasonably believed that the disclosure was in the public interest.
Practical point: the Chesterton case is going to be appealed but in the meantime, the position is that disclosures of a breach of an employee's own contract can sometimes be in the public interest. This means that it's important not to write off a disclosure, even if on the face of it, it's not what you might think of as "whistleblowing in the public interest".
- Wasteney v East London NHS Foundation Trust UKEAT/0157/15
Dealing with religious harassment at work
In this case an employee was disciplined after she repeatedly talked to a junior colleague about religion. The court found that the claimant had not been disciplined because she had manifested her religious belief but because she had subjected a subordinate to unwanted and unwelcome conduct, going substantially beyond religious discussion without regard to her influential position.
Practical point: Equal Opportunities training is essential so that employees understand the boundaries of acceptable workplace behaviour, and so that employers have a defence against discrimination claims.
- The Basildon Academies v Amadi UKEAT/0343/14
Employees are not normally obliged to disclose their own wrongdoing or competing activities
This case dealt with an allegation of sexual assault made against a teacher whilst he was working at a second job with another school. In the absence of an express term, the employee was not under an implied duty to disclose the allegations of misconduct.
Practical point: employers may wish to consider whether it is appropriate to include a clause in their contracts requiring senior employees in particular, to disclose their own wrong doing, and also requiring employees to seek their employer's permission before taking on additional employment.
- McElroy v Cambridgeshire Community Services NHS Trust ET/3400622/14
It is not always fair to dismiss an employee who comes to work smelling of alcohol
The summary dismissal of a healthcare assistant for coming to work smelling of alcohol was unfair. This was because a reasonable employer would not have treated this as gross misconduct or conduct justifying dismissal in the absence of either evidence of an adverse effect on the employee's ability to do his job, or in the absence of a previous warning given under the employer's disciplinary policy not to do so.
Practical point: for most employers, coming to work smelling of alcohol will usually be unacceptable. The issue here was that the disciplinary policy did not reflect the employer's intentions. It is worth checking the terms of the policy and making sure that they cover such issues, and that it's clear that coming to work under the influence, or smelling of alcohol, will not be acceptable.
- British Waterways Board v Smith  UKEAT/0004/15
Comments made on social media may be a reason for a fair dismissal
It was fair to dismiss an employee who made derogatory comments about his employer on Facebook. It did not matter that the misconduct had taken place two years before dismissal or that the employer had been aware of the misconduct throughout that period.
Practical point: employers can take action against employers for historical misconduct, although the dismissal still needs to be fair and reasonable overall, and the employer may have to answer a few questions about why they did not take action earlier.
- Ramphal v Department for Transport UKEAT/0352/14
HR may provide guidance but should not decide disciplinary outcomes
In this case, the investigating officer's report originally recommended a finding of misconduct and a sanction of a written warning, but after numerous comments and amendments by HR, the final report found the employee to have committed gross misconduct, and recommended immediate dismissal. HR's direct involvement in the decision to dismiss the employee made the dismissal unfair.
Practical points: when advising managers on any disciplinary or grievance processes, remember that the responsibility for any decision must rest with the decision maker and that can only happen when they actually make the decision on the facts, themselves, even if that is with legal and policy guidance from HR.
- MBNA Limited v Jones UKEAT/0120/15
Different disciplinary outcomes for employees involved in the same incident of misconduct
In this case, two employees had been found guilty of gross misconduct for their involvement in the same incident, although one was dismissed and the other was not. The tribunal found that the difference in sanction was unreasonable and that the employer had applied a "defence of provocation" differently between the two employees. These differences rendered the dismissal unfair.
The relevant question is whether the employer has acted reasonably towards the employee who has been dismissed, regardless of what sanction has been applied to the other. Disparity of treatment will occasionally be relevant to reasonableness, but the circumstances need to be "truly parallel". Provocation will only ever be a mitigating factor.
Practical point: making consistent decisions is the best way to avoid problems arising from these situations. Being able to evidence and explain decision making in such cases is also really important.
- Griffiths v The Secretary of State for Work and Pensions  EWCA Civ 1265
Dealing with a disabled employee's sickness absence in the same way as a non-disabled employee
An absence management policy, under which all employees, both disabled and non-disabled were treated equally, was capable of placing a disabled employee at a substantial disadvantage and that therefore the duty to make reasonable adjustments was engaged. The duty to make reasonable adjustments goes beyond equal treatment and requires employers to take positive steps.
Practical point: this case helpfully resolves the confusion surrounding reasonable adjustments and absence management policies and makes it clear that an employer should have regard to the duty to make reasonable adjustments when managing an employee's sickness absence.