So why was that not the case for P here? The employment judge (and the EAT on appeal) found that the alleged comments captured by the recording were not part of the deliberations of the panel. The comments did not constitute the type of private deliberations which the parties would understand to take place in relation to the matters in question at the grievance and disciplinary hearing, i.e. the type of discussions which would be protected by the approach laid down in the Dogherty case. In light of the nature of the comments, the EAT found no reason why, despite being private, the comments should be protected and given the relevance of the comments to G's claim, the recordings were therefore held to be admissible. What does this mean for employers? Covert recordings of disciplinary or grievance hearings may be admissible in evidence should an employee later bring a tribunal claim. There is scope to exclude such recordings on the "ground rules" basis established in Dogherty. Nevertheless, this case clearly highlights the limitations of such an exclusion. Employers, through their disciplinary and grievance policies, could expressly prohibit the recording of meetings. However, this does not necessarily prevent an employee from making a recording covertly and given the prevalence of employees' carrying mobile phones and other devices with recording functions, employers should be alert to this possibility. Employers should of course ensure that good practice and appropriate procedures are followed at all times during meetings to ensure that any covert recording made would not be damaging evidence. Employers should also consider practical ways in which they can avoid private deliberations being recorded such using a separate room in which to have such conversations or, when asking the employee to leave the room, ensuring that they take all belongings with them to avoid them surreptitiously leaving behind a recording device.
National minimum wage and sleep in night shifts
13 May 2014
Where a care worker was required to work a number of 'sleep in' night shifts at the employer's premises, and be available for emergency purposes, did the night shifts constitute 'time work' for the purposes of the National Minimum Wage legislation (or was she merely 'on call')?
Yes, the worker was engaging in 'time work' on the 'sleep in' shifts, held the Employmnet Appeal Tribunal (EAT) in Esparon t/a Middle West Residential Care Home v Slavikovska .
Daniel Barnett’s employment law bulletin summarises:
The EAT recognised that it is 'very difficult' to distinguish between cases where the worker was 'at work', being paid to be on the employer's premises 'just in case', and where the worker was 'on call' and not deemed to be working the whole time. An important consideration is why the employer requires the worker's presence. In this case, the worker was paid to fulfil the employer's legal obligations, under the regulations pertaining to care homes, to have staff available on the premises at all times. It was essential for the employer that staff be there even if they did nothing.
In the circumstances, the Claimant was entitled to be paid simply for being on the premises, regardless of whether she was allowed to sleep on shift.
CIPP Policy News Journal
08/04/2015, Page 105 of 521
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