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was not a group disadvantage suffered by the application of the employer’s policies. Agoreyo v London Borough of Lambeth The High Court has concluded suspending an employee as part of a disciplinary procedure is not a neutral act and can breach the contract of employment. The claimant was an experienced teacher who had fifteen years’ experience teaching in the UK and abroad. In November 2012, she successfully applied for a new teaching position and was put in charge of a class that contained two pupils with severe behavioural difficulties. The claimant had previously worked with children with special educational needs but had no formal training on dealing with pupils with behavioural difficulties. There were frequent incidents of bad behaviour and the claimant made a number of requests for additional support. The school agreed to put individual programmes in place for the pupils and arrange additional adult support. Teachers are legally permitted to use reasonable force against pupils under the Education and Inspections Act 2006. Three allegations were made against the claimant concerning the use of unreasonable force against the two difficult pupils, one in November 2012 and two in December 2012. (No criminal proceedings have followed these allegations and the claimant has not been barred from teaching). The claimant was suspended on 14 December 2012 as part of the disciplinary procedure to allow a full investigation in to the allegations. The suspension letter confirmed the suspension was a “neutral action and is not a disciplinary sanction” and the purpose was to allow a fair investigation. The claimant resigned on the same day and made a claim for damages for breach of contract. The County Court decided that the employer had reasonable and proper cause to suspend the claimant because of their overriding duty to protect the pupils. As such, this duty could only be met by suspending the claimant until a full investigation of the allegations was carried out. The High Court, in accordance with previous case law, confirmed that suspension is not considered a neutral act by the court. This is because in most cases, and especially where the investigation
applicant that his email communications had been monitored for a period of time and this monitoring had found that he had been using the internet for personal purposes during working time. A transcript of communications through Yahoo messenger was also presented which evidenced the applicant had sent messages to his brother and fiancée which were of a personal nature, sometimes concerning intimate details. The applicant was dismissed in August 2007 for breaching the company’s rule on computer use. The applicant made a claim to the Romanian courts arguing the accessing of his email communications had breached his right to a private and family life under article 8 of the European Convention of Human Rights. The case was heard by the ECHR and the judgment was released in January 2016. This judgment examined whether a fair balance had been struck between the applicant’s right to respect for a private life and correspondence and his employer’s interests. The court determined that the employer accessed the email account with the belief that this contained professional messages and only the email communications were accessed, not other documents on the computer. Therefore, the employer’s monitoring was limited and proportionate. In addition, the court found it was not unreasonable for an employer to want to check that employees were carrying out professional tasks during working hours. As such, the monitoring of the email account in the context of disciplinary proceedings did not breach the employee’s right to privacy. The case progressed to the Grand Chamber of the ECHR and the decision of the lower Chamber was overturned. The Grand Chamber judged there was not a fair balance struck between the competing interests of the employer to ensure effective running of their business and the employee’s right to privacy. In particular, it was noted that there had been no examination of whether the applicant had advance notice of the possibility that his communications would be monitored, what the employer’s specific reasons for monitoring were and whether there were any less intrusive measures that could have been utilised by the employer. In conclusion, the applicant’s right to respect for private life and correspondence was breached by the monitoring. n
process concerns a qualified professional, suspension is likely to have a negative impact on the individual’s reputation and their future career, even if allegations are not substantiated. Therefore, suspension should not be a ‘knee-jerk’ reaction or the default position used by employers to carry out a suspension. ...right to respect for private life and correspondence was... The High Court judged that the employer’s decision to suspend was sufficient to breach the implied duty of mutual trust and confidence and the claimant was constructively dismissed. It was found that the decision to suspend was taken after some investigation was carried out in two of the three incidents and after a decision had been made to take no disciplinary action in relation to these. Therefore, stating that suspension was necessary to carry out a full investigation was not supported. Before the decision to suspend, the High Court also found that the claimant had not been spoken to about the incidents or asked for her response to the allegations; there was no evidence of consideration given to alternatives; and there had not been sufficient time given to see the impact of the introduction of additional support to deal with the behavioural problems. Barbulescu v Romania Even whilst at work, employees have a right to respect for their private and family life. The European Court of Human Rights (ECHR) has made a final decision on whether an employer who carried out monitoring on work email accounts had breached this right. The applicant was employed by a Romanian company from August 2004 as an engineer in charge of sales. His employer requested him to set up a Yahoo Messenger account for the purpose of responding to customer enquiries. The company had a rule that employees were strictly forbidden to use computers and other company equipment for personal use. In July 2007, the employer told the
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Issue 35 | November 2017
| Professional in Payroll, Pensions and Reward |
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