Policy News Journal - 2016-17

The Chartered Institute of Payroll Professionals ……………………………………………………………Policy News Journal

Camp, then sitting in the Leicester Employment Tribunal. In Patterson v Castlereagh Borough Council [5] , the NICA had to determine the status of purely voluntary overtime. In that case the Employer’s QC conceded that voluntary overtime should be included for the purposes of regulation 13 leave. The NICA it reviewed Williams, Lock and Bear Scotland paragraphs 14 to 18 of the judgment before concluding paragraphs 21 and 22 that the concession had been well made stating ‘ there is no reason why voluntary overtime should not be included as a part of a determination of entitlement to paid annual leave. It will be a question of fact for each Tribunal to determine whether or not that voluntary overtime was normally carried out by the worker and carried with it the appropriately permanent feature of the remuneration to trigger its inclusion in the calculation’ and ‘ Unravelling the threads of the decision we have come to the conclusion that the Tribunal erroneously determined that voluntary overtime could not as a matter of principle be included in the calculation of holiday pay for the purposes of the WTR ’. In Whitehead & Ors v EMH Housing & Regeneration Limited [6] EJ Camp awarded the Claimants sums in respect of unauthorised deductions from wages in respect of the Respondent’s failure to calculate their holiday pay to take account of the payments they received for standby allowances and call-out payments. EJ Camp found that the standby and call-out payments were not directly linked to tasks any of the claimants was contractually required to carry out, and held that that was not the relevant question [7] . He held that the “ real issue in dispute is: are standby and call-out payments parts of remuneration that must be reflected in holiday pay under the Directive? ” [8] relying on paragraphs 19 and 20 of Williams which state ‘for the duration of ‘annual leave’ within the meaning of [the Directive], remuneration must be maintained… in other words, workers must receive their normal remuneration for that period of rest’. The purpose of paid leave is to put the worker, during such leave, in a position comparable to the one he is when he is working; and a reduction in holiday pay may deter him from taking holiday, contrary to the purpose of Article 7. [9] CIPP comment We don't know if there will be an appeal submitted on this latest case ‘White & Others v Dudley Metropolitan Borough Council’. It is also likely that there are other cases still waiting to be heard that may also have an impact in this area. We have contacted BIS for advice about the effect of this judgement on payroll and we will publish their response when we receive it.

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Right to privacy not engaged by employer investigating emails 5 May 2016

When an employer investigated an employee's emails to a work colleague, was Article 8 of the European Convention on Human Rights (right to privacy) engaged?

No, held the EAT in Garamukanwa v Solent NHS Trust , on the facts of that case.

With thanks to Daniel Barnett’s employment law bulletin which summarises the case:

The Claimant was a clinical manager for the Trust. He formed a personal relationship with a staff nurse, Ms MacLean. The Claimant then suspected that Ms McLean had formed a relationship with a female colleague, Ms Smith. He resented this. Anonymous malicious emails were sent from various fictional email addresses to management. Ms Maclean also became concerned that the Claimant was now harassing and stalking her. The employer investigated, and concluded there were items on the Claimant's iPhone which implicated him and linked him to the anonymous emails. He was dismissed for gross misconduct. His claim for unfair dismissal failed. In the course of the employment tribunal proceedings he unsuccessfully argued that the employer had acted in breach of Article 8 by examining matters related purely or essentially to his private life. The employment tribunal rejected this. It considered that Article 8 was not engaged on account that the emails had a potential impact on work, and dealt, at least in part, with work related matters. The EAT agreed. It relied on the guidance of Mummery LJ in X v Y on the impact of Convention rights in unfair dismissal cases. The first question always to be asked is whether the circumstances of the dismissal fall within the ambit of one or more articles of the Convention. Unless they do, the rights are not engaged and need not be considered further.


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