Is the right to respect for private life and correspondence breached if employers monitor employees' personal communications at work?
No, subject to reasonableness/proportionality, according to the European Court of Human Rights in Barbulescu v Romania .
With thanks to Daniel Barnett’s employment law bulletin for providing a summary of this case.
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 Rumanian 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 Rumanian 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.
Upper Tribunal holds damages for injury for feelings are taxable 29 January 2016
Is a payment in respect of injury to feelings made on the termination of employment subject to tax?
Yes, held the Tax and Chancery Chamber of the Upper Tribunal in Moorthy v The Commissioners for Her Majesty's Revenue and Customs .
The Claimant was made redundant. He then brought claims of unfair dismissal and age discrimination, which related entirely to his dismissal. By a settlement, the Claimant was paid an ex gratia sum of £200,000 by his employer, who treated £30,000 as tax exempt under s401 of ITEPA 2003 and deducted tax at basic rate from the remainder. In his tax return, the Claimant treated the balance as tax free. HMRC disagreed and issued a closure notice treating an extra £140,023 as taxable income but they did make a concession to treat a further £30,000 as damages for injury to feelings arising from age discrimination, and so not taxable.
The Claimant appealed. The First Tier Tribunal held that the balance was taxable. The Claimant appealed again.
The Upper Tribunal upheld the decision. Section 406(b) of ITEPA treats a payment "on account of injury to an employee" as not taxable, but that must be a medical condition. 'Injury' is akin to death or disability. It does not include injury to feelings. It applies to payments in connection with the termination of employment, or a change of duties or earnings. The Upper Tribunal noted that there appeared to be an anomalous distinction that compensation for discrimination during employment is not taxable, so that compensation may have to be apportioned between events before and after termination for tax purposes.
With thanks to Daniel Barnett’s employment law bulletin for providing a summary of this case.
Childcare vouchers and maternity leave 5 February 2016
The Employment Appeal Tribunal (EAT) has heard an appeal on the previously untested issue of whether or not an employer can make it a requirement of joining its childcare vouchers scheme that employees agree to suspend their membership while on maternity leave In June 2015 the Employment Tribunal found in the case of Donaldson v Peninsula Business Services that it was discriminatory for the employer to make it a requirement to join its childcare vouchers scheme that employees agree to cease to be a member of the scheme while on maternity leave.
On 22 January 2016, the Employment Appeal Tribunal (EAT) heard the appeal against the employment tribunal, the outcome of which we are waiting to hear.
CIPP Policy News Journal
25/04/2016, Page 81 of 453
Made with FlippingBook - Online magazine maker