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In Chesterton Global Ltd and anor v Nurmohamed, the Court of Appeal has held that an employment tribunal was entitled to find that an employee had a reasonable belief that his disclosures about his employer’s manipulation of profit and loss accounts were made in the public interest, despite his personal motivation in so doing (i.e. the effect this would have on his commission payments). The tribunal had identified a number of features that made it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker – specifically, the number of employees affected; the nature of the wrongdoing, which involved large sums of money; and the fact that it was deliberate.

N was employed as director of the Mayfair office of CG Ltd, a firm of estate agents. On three occasions between August and October 2013 he alleged to senior managers that there were inaccuracies in the company’s accounts and that figures were being manipulated to the benefit of shareholders. He was concerned that costs and liabilities had been deliberately misstated, and that inaccurate figures were used to calculate commission payments to over 100 senior managers (including himself). N was later dismissed and brought claims of, among other things, automatically unfair dismissal for having made a protected disclosure, contrary to S.103A of the Employment Rights Act 1996.

An employment tribunal found that N had a reasonable belief that the disclosures were made in the public interest (as required by an amendment to S.43B ERA that came into force on 25 June 2013) and upheld N’s claim. Upon appeal, the EAT held that it was entitled to do so. Although N had a personal motivation in raising the allegations, the tribunal had been satisfied that he had the other office managers in mind, and permissibly concluded that they comprised a sufficiently large section of the public to engage the public interest. CG Ltd appealed, arguing that in order for a disclosure to be in the public interest, it must serve the interests of persons outside the workplace – mere multiplicity of workers sharing the same interest was not enough.

The Court of Appeal (Lord Justice Underhill giving the lead judgment) dismissed the appeal. It observed that that the 2013 ‘public interest’ amendment to the ERA was intended to reverse the effect of the EAT’s decision in Parkins v Sodexho Ltd 2002 IRLR 109, whereby a worker could bring a protected disclosure claim purely in respect of a breach of his or her own contract of employment. It disagreed with Public Concern at Work (which intervened in the case) that a disclosure of a breach of contract could be in the public interest if it was in the interests of anyone else besides the worker making the disclosure. The question whether a disclosure is in the public interest depends on the character of the interest served by it rather than simply on the number of people sharing it.

On the other hand, CG Ltd went too far in suggesting that multiplicity of persons sharing the same interest can never, by itself, convert a personal interest into a public one. The statutory criterion of what is ‘in the public interest’ does not lend itself to absolute rules and the Court of Appeal was not prepared to discount the possibility that the disclosure of a breach of a worker’s contract ‘of the Parkins v Sodexho kind’ may nevertheless be in the public interest, or reasonably be so regarded, if a sufficiently large number of other employees share the same interest. Tribunals should, however, be cautious about reaching such a conclusion – the broad intent behind the 2103 statutory amendment is that workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers, even where more than one worker is involved.

The Court of Appeal went on to hold that where the disclosure relates to a breach of the worker’s own contract of employment (or some other matter where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker.

In this regard, the following factors suggested by N might be relevant:
• the numbers in the group whose interests the disclosure served
• the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed
• the nature of the wrongdoing disclosed, and
• the identity of the alleged wrongdoer.

In the instant case, the tribunal had identified other features, aside from the number of employees affected, which might be said to render disclosure in the public interest – specifically, that the disclosure was of deliberate wrongdoing, and that it allegedly took the form of misstatements in the accounts to the tune of £2-3 million. The Court observed that if the accounts had been statutory, the disclosure of such a misstatement would unquestionably be in the public interest (even if it involved a private company). The fact that the accounts in question were only internal made the position less black and white. However, internal accounts feed into the statutory accounts and C Ltd is a very substantial and prominent business in the London property market. It was debatable whether the tribunal, which was navigating uncharted waters, fed those factors into its assessment that it was reasonable to regard disclosure as being in the public interest. But, even if it did not, the Court considered that they would only have reinforced its conclusion, based on the numbers alone, so that any error of law in its reasoning was immaterial.

Link to transcript: http://www.bailii.org/ew/cases/EWCA/Civ/2017/979.html

In Small v Shrewsbury and Telford Hospitals NHS Trust, the Court of Appeal has held that an employment tribunal ought to have considered whether to award compensation for long-term loss of earnings to a claimant whose employment was terminated because he had made a protected disclosure, even though the claimant, a litigant in person, did not expressly advance such a claim. In the Court’s view, given that the tribunal had acknowledged that the consequences of the termination were ‘career-ending’ for the claimant, it should have recognised and raised the issue itself.

S began working for the Trust in May 2012 at the age of 56. He was engaged through an agency on a temporary assignment but understood that there was a prospect of full-time employment in due course. However, two months later the Trust terminated his engagement. S successfully argued before an employment tribunal that the reason for the termination was that he had made a protected disclosure and the tribunal found that the termination constituted an unlawful detriment under S.47B of the Employment Rights Act 1996. At the remedy hearing, S, who was unrepresented, claimed compensation for, among other things, loss of earnings up to his anticipated date of retirement in 2022. This was on the basis that a permanent appointment would have followed but for the unlawful termination. S also put in evidence to show that, since his dismissal, he had been unable to obtain work in the same field despite numerous applications. He asserted that his search for employment had been hampered by the fact that he was dismissed and by the lack of a reference from the Trust.

The employment tribunal awarded compensation of £54,126, including £33,976 for loss of earnings. It calculated loss of earnings on the basis that S would not have been given the permanent employment which he said he had been led to expect but that he would have been retained until November 2013. The tribunal made no award for loss of earnings beyond that point. However, in its reasoning on injury to feelings it observed that S’s career was dependent on the outcome of his last job, that the lack of a reference was indeed a hindrance and that the termination had been ‘career-ending’. S appealed to the EAT, where he had the benefit of representation by counsel for the first time. He argued that the tribunal should have awarded loss of earnings beyond November 2013 on the basis of the Court of Appeal’s decision in Chagger v Abbey National plc (Brief 893), where the Court held that, in principle, a claimant can recover for loss of earnings beyond the date on which employment would have otherwise terminated and can, in principle, claim for the ‘stigma’ that he or she suffers in the labour market. The EAT dismissed the appeal. While it accepted that there are some principles that are so well established that a tribunal might be expected to consider them as a ‘matter of course’, it could not accept that the Chagger basis of claim was in this category. S appealed to the Court of Appeal.

The Court allowed the appeal, holding that, in the particular circumstances of the case, the tribunal ought to have considered whether S had a claim in respect of his loss after November 2013, which would, in principle, include a stigma claim. Lord Justice Underhill, giving the only judgment, pointed out that S’s evidence to the tribunal made clear that he was suffering a loss extending into the indefinite, and probably long-term, future, and that the tribunal had itself recognised the ‘career-ending’ consequences of the termination for S. Although a Chagger claim will not always be a ‘matter of course’, it was so in the particular circumstances of the present case. Underhill LJ rejected the Trust’s argument that, because S had put his claim for future loss on the basis of long-term permanent employment with the Trust, the tribunal was under no obligation to formulate a different future loss claim and consider that. The Chagger claim was an obvious alternative or fallback to the very specific and rather ambitious claim that S was advancing. He should not be regarded as having given up the right to have that alternative considered by the tribunal simply because both types of claim could be labelled as ‘future loss’.

Link to transcript: http://www.bailii.org/ew/cases/EWCA/Civ/2017/882.html

The Court of Appeal has delivered an important decision on employment status holding that the plumbers engaged by Pimlico Plumbers were engaged as workers not self employed contractors.

In Pimlico Plumbers Ltd and anor v Smith, the Court of Appeal has upheld the decision of an employment tribunal that a plumber who was self-employed for tax purposes was nevertheless a ‘worker’ within the meaning of S.230(3)(b) of the Employment Rights Act 1996 and the Working Time Regulations 1998 SI 1998/1833 and an ‘employee’ under the extended definition of that term in S.83(2) of the Equality Act 2010.

S was a plumber who carried out work solely for PP Ltd between 25 August 2005 and 28 April 2011. He had signed an agreement that his work would be governed by terms and conditions set out in PP Ltd’s Manual, which included stipulations as to working hours, uniform and appearance; restricted the ability of S to work for himself or other companies; obliged S to use a PP Ltd van for his work; and provided that S could only swap jobs with other PP Ltd operatives. During this period, S filed tax returns on the basis that he was self-employed. He was registered for VAT and submitted regular VAT invoices to PP Ltd. In January 2011, S had a heart attack and PP Ltd subsequently terminated its arrangement with him on 3 May 2011, following which he brought claims in the employment tribunal alleging unfair dismissal, wrongful dismissal, entitlement to pay during the period of a medical suspension and failure to provide particulars of employment. These claims all depended on S being an employee within the meaning of S.230(3)(a) ERA – i.e. employed under a contract of service. At a pre-hearing review, an employment judge held that S was not employed under such a contract, and therefore concluded that the tribunal had no jurisdiction to hear these claims.

However, S had additionally made claims for unpaid holiday pay and unlawful deductions from wages. For these purposes he did not need to show that he was an employee, merely that he was a ‘worker’ within the meaning of S.230(3)(b) ERA and Reg 2 WTR – i.e. he was employed under a contract ‘whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual’. He also claimed against both PP Ltd and its owner, M, for direct disability discrimination, discrimination arising from disability and failure to make reasonable adjustments. For these purposes, he needed to be an employee within the extended definition in S.83(2) EqA, which includes those employed under ‘a contract personally to do work’.

The employment judge held that S was a worker and an employee in the extended sense. The main purpose of the agreement signed in 2005, and a subsequent agreement containing updated terms which S signed in 2009, was for S to personally provide work for PP Ltd. The Manual obliged him to work 40 hours per week (M’s evidence was that the minimum week in practice was 36 hours per week), and although there was some flexibility, he was required to agree the hours he would work with PP Ltd.  There was not an unfettered right to substitute at will: there was no such right given to S by the contractual documents and no evidential basis for such a practice. Even though in practice engineers with PP Ltd swapped jobs around between each other, and also used each other to provide additional help where more than one person was required for a job or to do a job more quickly, and there was evidence that external contractors were sometimes required to assist a job due to the need for further assistance or to conduct specialist work, the fact was that S was under an obligation to provide work personally for a minimum number of hours per week or on the days agreed with PP Ltd. S had a degree of autonomy in relation to the estimates and work done, but PP Ltd exercised very tight control in most other respects. These factors led the judge to conclude that PP Ltd could not be considered to be a client or customer of S’s business.

The EAT upheld the employment judge’s decision, leading PP Ltd to appeal further to the Court of Appeal, where the Master of the Rolls (Sir Terence Etherton) gave the lead judgment. He began by observing that ‘the case puts a spotlight on a business model under which operatives are intended to appear to clients of the business as working for the business, but at the same time the business itself seeks to maintain that, as between itself and its operatives, there is a legal relationship of client or customer and independent contractor rather than employer and employee or worker’. Citing the judgment of Lady Hale in the Supreme Court in Clyde and Co LLP and anor v Bates van Winklehof (Brief 1000), he stressed that in the context of S.230(3)(b) ERA, Reg 2 WTR and S.83(2) EqA, ‘a distinction is to be drawn between (1) persons employed under a contract of service; (2) persons who are self-employed, carrying on a profession or a business undertaking on their own account, and who enter into contracts with clients or customers to provide work or services for them; and (3) persons who are self-employed and provide their services as part of a profession or business undertaking carried on by someone else’. The question posed by the appeal was whether the employment judge was correct to hold that S fell in category (3) rather than category (2).

In the Master of the Rolls’ view, the employment judge had been correct to conclude that S was under an obligation to provide his services personally. Unlike earlier decisions of the EAT and Court of Appeal in which it had been held that an express right of substitution or delegation was incompatible with an obligation of personal performance, the facts here indicated that there was no such express right. Nor was there any scope for the Court to imply such a right. Furthermore, having found that S was obliged under the terms of his agreements with PP Ltd to do a minimum number of hours per week, the employment judge concluded, and was entitled to conclude, that the degree of control exercised by PP Ltd over S was also inconsistent with PP Ltd being a customer or client of a business run by S. In particular, the judge was entitled and right to place weight on the onerous restrictive covenants in the agreement, precluding S from working as a plumber in any part of Greater London for three months after termination.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2017/51.html

Is a ‘perfunctory and insensitive’ redundancy consultation likely to make a redundancy dismissal unfair? Yes, held the EAT in Thomas v BNP Paribas Real Estate, upholding an appeal against the finding of a fair dismissal. The Claimant had over 40 years’ service, ending up as a Director of the Respondent’s property management division. After a strategic review, the Claimant was put at risk of redundancy and immediately put on ‘garden leave’ and told not to contact clients or colleagues. The Respondent then made a number of procedural errors, including getting the Claimant’s first name wrong in a letter. However, the employment tribunal found that the dismissal was fair. The EAT quashed the decision, remitting the claim to a different employment tribunal. The EAT criticised the decision to put the Claimant on garden leave and to prohibit contact with colleagues during the consultation period. The EAT found it ‘particularly troubling’ that the employment tribunal had found the manner of consultation perfunctory and insensitive, yet considered that it was reasonable, without saying why. Such a process would not necessarily be unreasonable, and hence unfair, but one would expect to find some form of reasoning from the employment tribunal to explain why matters that gave rise to criticism of the process did not render the consultation unreasonable.

In Bandara v British Broadcasting Corporation the EAT has upheld the decision of an employment tribunal that an employer had not been entitled to rely upon an existing final written warning when considering whether to dismiss an employee for further misconduct because the decision to issue the existing warning was ‘manifestly inappropriate’. However, the EAT went on to hold that the tribunal erred in finding that the dismissal was nonetheless fair. The tribunal had wrongly posed the hypothetical question of what would have happened had the existing warning been an ordinary, as opposed to a final, written warning. Instead, the tribunal ought to have considered the extent to which the employer relied on the final written warning and, given the employer’s reasoning, whether the dismissal fell within the range of reasonable responses under S.98(4) of the Employment Rights Act 1996.

B worked as a Senior Producer in the BBC’s Sinhalese Service. Until 2013, he had an unblemished disciplinary record going back almost 18 years. In August 2013, he was subject to disciplinary proceedings in respect of two incidents which had taken place earlier that year. The first, for which he was charged with abusive behaviour and refusing to follow a reasonable management request, concerned an occasion in March when he had shouted at a senior manager, S. He had apologised to S by e-mail the following day and no further action was taken at the time. The second, for which he was charged with a breach of editorial guidelines, related to his decision, on 23 July 2013, to prioritise coverage of the 30th anniversary of Black July – a sombre date in Sri Lankan history ­– over that of the birth of Prince George the previous day. The disciplinary decision-maker, I, considered that both incidents potentially constituted gross misconduct, and decided to impose a final written warning.

Shortly thereafter, B was subject to further disciplinary proceedings, which concerned various allegations of bullying and intimidation, being abusive towards colleagues and refusing to obey management instructions. G, the disciplinary decision-maker in these proceedings, found most of the allegations proved or partially proved, and concluded on 15 August 2014 that B should be summarily dismissed. B’s claims of race discrimination and unfair dismissal were dismissed by an employment tribunal, notwithstanding the tribunal’s finding that the earlier final written warning was manifestly inappropriate. B appealed against the dismissal of his unfair dismissal claim, and the BBC cross-appealed against the tribunal’s finding on appropriateness of the earlier warning.

The EAT noted that, in general, earlier decisions by an employer should be regarded by the tribunal as established background that should not be reopened. However, an earlier disciplinary sanction can be reopened if it is ‘manifestly inappropriate’, i.e. if there is something about its imposition that, once pointed out, shows that it plainly ought not to have been imposed. In the present case, the EAT considered that the tribunal had been entitled to conclude that the earlier final written warning should not have been imposed. As the tribunal found, the misconduct in question plainly did not amount to gross misconduct, either by reference to the BBC’s disciplinary policy or by generally accepted standards.

However, the EAT held that the tribunal had erred in concluding that B’s dismissal was nonetheless fair. Where an employee is dismissed for misconduct following a final written warning that the tribunal considers manifestly inappropriate, the tribunal should not put forward a hypothesis of its own, but should examine the employer’s reasoning and see whether or not the decision to dismiss was reasonable having regard to equity and the substantial merits of the case. This will include consideration of the extent to which the employer relied on the final written warning. In the EAT’s view, if the employer treated the warning as no more than background or as indicative of the standard to be expected of an employee, and in fact dismissed for the misconduct alleged in the new proceedings, then it may be that the dismissal was fair. If, however, the employer attached significant weight to the warning, for example starting from the position that because the employee was already subject to a final written warning, he or she should be dismissed for any significant further misconduct, it is difficult to see how the employer’s decision could be reasonable.

In the present case, the tribunal had wrongly considered the hypothetical question of whether the dismissal would have been fair had B been subject to an ordinary, as opposed to a final, written warning. Its decision therefore could not stand. As the tribunal had not made clear findings on the extent to which the BBC in fact took account of the existing final written warning, the EAT could not establish for itself whether or not B’s dismissal was fair, and the case was remitted to the tribunal for determination of this point.

Link to transcript: http://www.bailii.org/uk/cases/UKEAT/2016/0335_15_0906.html

 

In Aslam and ors v Uber BV and ors, the London Central Employment Tribunal has held that drivers engaged by Uber are not self-employed contractors, but fall squarely within the legal definition of ‘worker’ under S.230(3)(b) of the Employment Rights Act 1996 (and equivalent definitions in the Working Time Regulations 1998 and the National Minimum Wage Act 1998) with the result that they are legally entitled to the national minimum wage, paid annual leave, and whistleblower protection. The tribunal’s judgment sets out a scathing critique of Uber’s submissions that it is a technology platform as opposed to a transport provider and that its drivers are self-employed contractors offering their services to passengers via the Uber app. In the tribunal’s view, any driver who has the app switched on, is within the territory in which he or she is authorised to work, and is able and willing to accept assignments is – for so long as those conditions are satisfied – working for Uber under a worker contract.

The tribunal highlighted that Uber runs an enterprise whose central function is the carrying of people in cars from one point to another and that it operates in part through a company that is regulated as a private hire vehicle operator, but that it resorts in its documentation to ‘fictions’, such as fake invoices that it generates on behalf of its drivers but that are never sent to passengers, and ‘twisted language’ in its contracts with drivers. The tribunal considered that the ‘remarkable lengths’ to which Uber had gone to compel agreement with its legal analysis merited ‘a degree of scepticism’. Moreover, the tribunal noted that in other correspondence, for example in submissions to the Greater London Authority Transport Scrutiny Committee, Uber had boasted of providing job opportunities and potentially generating tens of thousands of jobs in the UK, and paying its drivers on a commission basis. The tribunal also agreed with the findings of the North California District Court, in a similar case brought by Uber drivers in California, that ‘Uber does not simply sell software; it sells rides.’

In the tribunal’s view, the case put forward by Uber did not correspond with the practical reality. The notion that Uber in London was a mosaic of 30,000 small businesses linked by a common platform was ‘faintly ridiculous’. Save for a few individuals who operate more than one vehicle on their Uber account, each such business consisted of an individual with a car seeking to make a living by driving it. In addition, Uber’s case was dependent on the assertion in its terms and conditions that the driver enters into a contract with each passenger to provide the transportation service – but this would be absurd, since neither party knows the identity of the other, the route is set by Uber and the price is calculated by and paid to Uber. The tribunal therefore considered that the driver/passenger contract was a pure fiction.

With regard to the nature of the relationship between Uber and its drivers, the tribunal noted in particular that: the terms for passengers contradict themselves insofar as they state that Uber is the drivers’ agent but at the same time asserts ‘sole and absolute discretion’ to accept or decline bookings; Uber interviews and recruits drivers; Uber controls key information as to the passenger’s identity and intended destination and does not share this with drivers; Uber requires drivers to accept and/or not to cancel trips and enforces this requirement by logging off drivers who breach it; Uber sets the default route for each trip and the driver may face deductions from his or her fare if he or she departs from it; Uber fixes the fare and the driver cannot agree a higher sum with the passenger; Uber imposes conditions on drivers, instructing them on how to do their work and controlling them in the performance of their duties; Uber subjects drivers through its rating system to what is effectively a performance management/disciplinary procedure; Uber determines issues about rebates for passengers, sometimes without involving the driver affected; Uber used to operate a scheme guaranteeing minimum earnings for new drivers; Uber accepts the risk of loss, for example where a passenger soils a vehicle or in the case of fraud, which if the drivers were genuinely in business on their own account would fall on them; Uber handles passenger complaints; and Uber reserves the right unilaterally to amend drivers’ terms.

The tribunal concluded that the wording of S.230(3)(b) ERA was fully applicable to the drivers in the instant case and that the guidance in the principal authorities favoured its view, rather than that put forward by Uber. It considered that the problem stemmed from the unequal bargaining positions of the parties, noting that many Uber drivers do not have English as a first language and will not be accustomed to interpreting ‘dense legal documents couched in impenetrable prose’, which the tribunal considered simply misrepresented the true rights and obligations on both sides. However, the tribunal noted that nothing in its reasoning should be taken as doubting that Uber could have devised a business model that did not involve it employing drivers; it was simply that Uber’s chosen model failed to achieve that aim.

Uber has confirmed that it will be seeking to appeal the decision.

Link to judgment: https://www.judiciary.gov.uk/judgments/mr-y-aslam-mr-j-farrar-and-others-v-uber/

Settlement sum representing injury to feelings was taxable

In Moorthy v Commissioners for HM Revenue and Customs, the Tax and Chancery Chamber of the Upper Tribunal has held that a sum paid to an employee under a settlement agreement in respect of injury to feelings was not exempted from income tax under S.406 of the Income Tax (Earnings and Pensions) Act 2003. Although S.406 takes payments made in respect of injury to an employee outside the charge to tax, ‘injury’ in this context did not include injury to feelings. The EAT’s decisions to the opposite effect in Vince-Cain v Orthet Ltd (Brief 770) and Timothy James Consulting Ltd v Wilton 2015 ICR 764 were wrongly decided.

After M was made redundant by JE Ltd in March 2010 he brought proceedings for unfair dismissal and age discrimination. Following mediation, he reached a settlement agreement with JE Ltd under which it agreed to pay him ‘an ex gratia sum of £200,000 by way of compensation for loss of office and employment’. JE Ltd treated the first £30,000 as exempt from tax by virtue of S.403 ITEPA but deducted income tax at the basic rate from the remainder. When M completed his tax return he treated the whole sum as being tax free. HMRC disagreed and issued a closure notice. On appeal, the First-Tier Tribunal (FTT) found that the whole of the settlement sum had been paid in connection with the termination of M’s employment under S.401 ITEPA and so was chargeable to tax pursuant to S.403. M appealed against that decision to the Upper Tribunal. Among other things, he argued that the settlement sum was taken out of S.401 by S.406(b) ITEPA, which exempts from income taxation a payment or benefit made ‘on account of injury to’ an employee.

The Upper Tribunal dismissed the appeal. It agreed with the FTT that the entirety of the £200,000 settlement sum fell within S.401 as a payment made in connection with the termination of M’s employment. The section applies to payments made even where the termination was fair and lawful and includes non-pecuniary awards, such as damages for injury to feelings. Even if the sum paid might exceed the statutory maximum that could be awarded for unfair dismissal, that did not mean that the excess was unconnected with the termination of the employment.

As for the exemption in S.406, the Tribunal could not accept that, insofar as the sum represented damages for injury to feelings, it was a payment on account of ‘injury’. The meaning of ‘injury’ in S.406 ITEPA is context-specific. It could not be read as exempting all payments made by an employer in respect of an injury to an employee; rather, it was intended to apply to injuries that led to the termination of employment or to a change in duties or level of earnings. In so holding, the Tribunal stated that the EAT was wrong to decide that injury to feelings was covered by S.406 ITEPA in Vince-Cain v Orthet Ltd and Timothy James Consulting Ltd v Wilton. The obiter reasoning of the Chancery Division in Horner v Hasted (Inspector of Taxes) 1995 STC 766 was to be preferred.

Link to transcript: http://www.bailii.org/uk/cases/UKUT/TCC/2016/13.html

Monitoring Employees’ Use of the Internet

Is the right to respect for private life and correspondence breached if employers monitor employees’ personal communications at work? No, subject to reasonableness/proportionality, according to the European Court of Human Rights in Barbulescu v Romania. Mr Barbulescu was an engineer who used his business Yahoo Messenger account to send and receive personal messages with his fiancee and his brother, including messages about his health and sex life.  This was in breach of his employment contract.  His employer, discovering this accidentally, dismissed him.  Mr Barbulescu argued that the Rumanian courts should have excluded all evidence of his personal communications on the grounds it infringed his Convention rights to privacy.

In summary:

  • any dismissal of a zero hour contract employee is automatically unfair, if the principal reason is that s/he breached a contractual clause prohibiting him/her from working for another employer
  • no qualifying period is required to bring such an unfair dismissal claim; and,
  • it is also unlawful to submit a zero hour worker (note: worker not employee) to detriments if they work for another employer in breach of a clause prohibiting them from doing so.

The Exclusivity Terms in Zero Hour Contracts (Redress) Regulations 2015