Policy News Journal - 2016-17

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

Article 8 does extend to protect private correspondence and communications and, potentially, emails sent at work where there is reasonable expectation of privacy. However, here, the emails had impacted on work related matters and the emails were sent to work addresses of the recipients. They distressed colleagues, potentially affecting their work, and the Claimant's judgement, as a manager, was rightly to be examined. These were all features that entitled the employment tribunal to conclude that Article 8 was not engaged and therefore not relevant because the Claimant had no reasonable expectation of privacy in respect of such communications.

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Claim for payment of notice 10 May 2016

Does an employee's willingness to negotiate a termination package prevent a claim of constructive dismissal?

No, held the High Court in Gibbs v Leeds United Football Club .

The Claimant was the assistant manager at Leeds United. The manager he worked with was sacked. The Claimant was asked if he was interested in becoming head coach but he declined. He expected to be dismissed although he was asked to continue in his role whilst discussions were held about a consensual departure. The Claimant was not expected to work with the new manager. He was excluded from any meaningful part in the training of the first team, which was part of his normal duties, and he was not invited to pre-season training. Instead, he was told by email that he was to have no contact with the first team and he would work with the youth academy. He resigned in response. The High Court held that it was not a breach of contract on his part to initiate a discussion about consensual termination. The fact that he had said that he was prepared to leave if suitable terms were agreed was beside the point. He had remained ready and willing to fulfil his duties. The email was repudiatory, since it led to a plain loss of status, and he had resigned in response to that and was therefore entitled to succeed in his claim for notice pay.

With thanks to Daniel Barnett’s employment law bulletin which provided the details of this case.

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Definition of Employee 16 May 2016

Can an employment tribunal take account of the absence of mutuality of obligation when deciding whether an individual is an employee for the purpose of the Equality Act 2010?

Yes, held the Court of Appeal in Secretary of State for Justice v Windle and Arada.

The Claimants were professional interpreters who provided work for HMCTS on a case-by-case basis. They were self-employed for tax purposes and did not receive holiday or sick pay.

Proceedings were brought against the MoJ for racial discrimination. The employment tribunal dismissed the claims on the basis that the Claimants were not employees for the purposes of the Equality Act 2010. Citing Quashie v Stringfellows, the employment tribunal considered that it was relevant that there was no obligation on the Claimants to accept any assignment, and thus there was no mutuality of obligation. The EAT disagreed, finding that the absence of mutuality of obligation was only relevant in considering whether a contract of employment existed, and was irrelevant to whether there was a “contract personally to do work” as specified by the Act. Restoring the employment tribunal’s decision, the Court of Appeal found that, despite the fact that demonstrating mutuality of obligation between parties was not a pre-condition for the definition of 'employment' under the Equality Act, it was a factor capable of shedding light on the nature of the relationship.


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