In the case of Asda Stores Ltd v Mrs S Bierley and others , Mr Justice Kerr decided that:
1. Article 157 of the Treaty on the Functioning of the European Union is directly effective in a claim founded on equal pay for work of equal value.
2. Where there is a “single source” of pay and conditions for both claimant and comparator, a comparison is permitted. Single source is a freestanding gateway to comparability and not an additional hurdle to be overcome in all cases. 3. A Tribunal is entitled to take into account the similarity between the claimant’s terms (other than the ones that are the subject of the claim) and those of the comparator as well as the genesis of those terms in deciding whether or not they are “common terms” for the purposes of both the Equal Pay Act 1970 and the Equality Act 2010. 4. Where no comparator works at the claimant’s establishment, comparison is permitted if a hypothetical employee at the claimant’s establishment would have been employed on broadly similar terms to the actual comparator (referred to as the “North hypothetical” test). The North hypothetical is still available under the 2010 Act, notwithstanding that the wording in the 1970 Act was not replicated in the 2010 Act.
The EAT has given Asda permission to appeal to the Court of Appeal.
With thanks to Daniel Barnett’s employment law bulletin for providing this summary.
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Monitoring workers' emails for private use 11 September 2017
The ECHR previously ruled that businesses are entitled to check that their staff are using private messaging applications for work purposes during work hours; this decision has been overturned.
In the case of Bărbulescu v Romania, the Court concluded that the Romanian courts, in reviewing the decision of Mr Bărbulescu’s employer to dismiss him after having monitored his electronic communications, failed to strike a fair balance between the interests at stake: namely Mr Bărbulescu’s right to respect for his private life and correspondence, on the one hand, and his employer’s right to take measures in order to ensure the smooth running of the company, on the other. The Court found that the Romanian courts failed to determine whether Mr Bărbulescu had received prior notice from his employer of the possibility that his communications might be monitored. They did not address the fact that he had not been informed of the nature or the extent of the monitoring, in particular the possibility that the employer might have access to the actual contents of his messages. The national courts also failed to determine, firstly, the specific reasons justifying the introduction of the monitoring measures; secondly, whether the employer could have used measures entailing less intrusion into Mr Bărbulescu’s private life and correspondence; and thirdly, whether the communications might have been accessed without his knowledge.
Consequently, Mr Bărbulescu’s right to respect for his private life and correspondence under Article 8 was not adequately protected by the national authorities.
What does the court’s finding mean for employers? It does not mean that employers cannot, under any circumstances, monitor employees’ communications or that they cannot dismiss employees for using the internet at work for private purposes. However, the Court considers that States should ensure that, when an employer takes measures to monitor employees’ communications, these measures are accompanied by adequate and sufficient safeguards against abuse.
In other words, this case acts as a good prompt for employers, to ensure that any policies about email communications are sufficiently clear and unambiguous.
A Q & A produced by the Grand Chamber judgment provides further insight into the case of Bărbulescu v. Romania.
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The Chartered Institute of Payroll Professionals
Policy News Journal
cipp.org.uk
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