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

In Cooper Contracting Ltd v Lindsey, the EAT has given a useful summary of the principles that tribunals should apply when considering whether a successful claimant’s compensation should be reduced to reflect failure to mitigate loss following unfair dismissal. Mr Justice Langstaff, President of the EAT, confirmed that it is not for the claimant to prove that he or she has mitigated his or her loss, the burden of proof is on the wrongdoer, and that it must be proved that the claimant acted unreasonably.

L worked as a carpenter for CC Ltd for 21 months until it dispensed with his services in December 2013. He claimed unfair dismissal. Although CC Ltd argued that L had worked for it on a self-employed basis, the tribunal found that he was in fact an employee and went on to uphold his claim. When it came to assessing compensation, the tribunal noted that, since his dismissal, L had chosen not to seek alternative employment but had been working as a self-employed tradesman. It found that this was a reasonable course of action and that it should not limit L’s compensation for loss up to the date of the hearing on the basis of failure to mitigate. However, it noted that there were other opportunities for employed work at higher remuneration, if L wished to look for them, and considered that this justified limiting his future loss to three months. CC Ltd appealed against the compensation award to the EAT. It argued, among other things, that the tribunal’s finding that better-paid alternative employment was available to L should have led to a finding that he had failed to mitigate his loss.

The EAT dismissed the appeal. Mr Justice Langstaff, President of the EAT, rejected the suggestion that the duty to mitigate is a duty to take all reasonable steps to lessen the loss. He went on to summarise the principles governing mitigation of loss as follows: (1) the burden of proof is on the wrongdoer – a claimant does not have to prove that he or she has mitigated his or loss; (2) the burden of proof is not neutral and if no evidence on the point is put before the tribunal by the wrongdoer then the tribunal has no obligation to find it; (3) what has to be proved is that the claimant acted unreasonably; (4) there is a difference between acting reasonably and not acting unreasonably; (5) what is reasonable or unreasonable is a matter of fact; (6) it is to be determined taking into account the views and wishes of the claimant as one of the circumstances, although it is the tribunal’s assessment of reasonableness and not the claimant’s that counts; (7) the tribunal is not to apply too demanding a standard to the victim; (8) the test may be summarised by saying that it is for the wrongdoer to show that the claimant acted unreasonably in failing to mitigate; and (9) in a case in which it may be perfectly reasonable for a claimant to have taken on a better paid job that fact does not necessarily satisfy the test. It will be important evidence that may assist the tribunal to conclude that the claimant has acted unreasonably but it is not in itself sufficient.

Applying these principles to the tribunal’s judgment, Langstaff P was satisfied that there was no error of law. The tribunal had given adequate reasoning for its finding that it was reasonable for L to re-enter the job market as a self-employed tradesman; and the decision to limit future loss to three months was within the tribunal’s ‘just and equitable’ discretion in the amount of compensation to be awarded under S.123 of the Employment Rights Act 1996.

In MBNA Ltd v Jones, the EAT has overturned a tribunal’s finding of unfair dismissal on the basis of inconsistent treatment. The tribunal had not been entitled to find that there was an unreasonable disparity of treatment between an employee who was dismissed for punching a colleague at work event and the colleague who was given a final written warning for sending threatening texts to that employee after the work event had finished.

J was employed by MBNA Ltd, a bank, as a collections officer. On 8 November 2013, MBNA Ltd held an event at Chester Racecourse to celebrate its 20th anniversary. Staff were told that it was a work event and that normal procedures and guidelines with regard to conduct would apply. At the event, there were some incidents between J and a colleague, B, which onlookers described as ‘fun/banter’ but which culminated in J punching B in the face. After J had left the work event, B texted him seven times, threatening serious violence. However, there was no further incident between them. MBNA Ltd investigated the incidents and the same person, H, undertook disciplinary hearings in both J’s and B’s cases. He found that there had been no substantive provocation before J punched B and that the incident risked reputational damage to the company. H concluded that J should be dismissed for gross misconduct. As for B, H found that the text messages were of an extremely violent nature but that they were sent as an immediate response to J hitting B. Although he considered that this also amounted to gross misconduct, the appropriate penalty was a final written warning. J claimed unfair dismissal.

A tribunal upheld J’s claim. It reasoned that, had both J and B been dismissed for what were proven (and unarguable) acts of gross misconduct, then both dismissals would have been fair. However, it considered that there was an unreasonable inconsistency in treatment between J and B. In particular, the tribunal considered that H had not been entitled to conclude that the text messages sent by B were in ‘immediate response’ to J punching him; and that the ‘defence of provocation’ was applied differently to B. There was thus a disparity of treatment which rendered J’s dismissal unfair. MBNA Ltd appealed to the EAT.

The EAT allowed the appeal. It pointed out that, when considering a claim of unfair dismissal based on disparity, the tribunal must focus on the treatment of the employee bringing a claim – if it was reasonable for the employer to dismiss this employee, the mere fact that the employer was unduly lenient to another employee is neither here nor there. Following Hadjioannou v Coral Casinos Ltd 1981 IRLR 352, EAT, an employer’s decision made in a truly parallel case may support the argument that it was not reasonable to dismiss the employee, but it will be rare for the facts to be sufficiently similar. Here, the tribunal had erred by considering whether MBNA Ltd was unreasonably lenient in B’s case – it should have focused on its treatment of J. It also erred in finding that the ‘defence of provocation’ was applied inconsistently. The tribunal had apparently concluded that MBNA Ltd made different decisions in indistinguishable circumstances but this was not the correct legal test. The tribunal had permissibly found that J’s misconduct was sufficient to warrant dismissal. Applying the Hadjioannou test, it would have been perverse for it to treat a deliberate punch in the face at a work event as sufficiently similar to threats made by text thereafter. There was therefore no question of disparate treatment and so the conclusion had to be that the dismissal was fair. A finding of fair dismissal would therefore be substituted for the tribunal’s decision.

Link to transcript

In Williams v Leeds United Football Club, the High Court has held that an employer was entitled to summarily dismiss an employee, who was already serving 12 months’ notice of redundancy, when it discovered that, five years previously, he had forwarded a pornographic e-mail to a junior colleague and two external contacts. The employer was entitled to treat this conduct as a repudiation of the contract of employment, despite the fact that it was looking for a reason to justify immediate termination.




In Atkinson v Community Gateway Association the EAT has confirmed that an employee is not prevented from claiming constructive dismissal by the fact that he or she is in breach of contract at the time of the employer’s breach. Although there had been inconsistent authorities on this point, the Court of Session’s decision in McNeill v Aberdeen City Council embodied the proper approach under English law.

The High Court has thrown out a claim by two former Investec traders for a combined total of more than £6m in bonuses from the company. Judge George Leggatt said: “I regard their claim that an oral agreement was made to use the ‘institutional market rate’ in calculating their bonuses as wholly incredible.” Andrew Brogden and Robert Reid have been ordered to pay Investec’s costs of more than £1.5m.

Financial Times, Page: 16  

The MoJ is looking to reemploy 2,000 prison officers who recently took voluntary redundancy, in response to the rising number of prisoners in Britain’s jails. Former staff have received a letter, seen by the Observer, explaining that Her Majesty’s Prison Service Reserve has been set up to “respond to particular short-term pressures in prisons”, which “may be due to unforeseen increases in prisoner numbers or as a response to the operational pressures which surface from time to time”. The MoJ has so far spent £50m on redundancy payments at an average cost of £35,000 per officer

Holiday pay claims could cripple small firms

An ECJ ruling giving British workers the right to claim for holiday pay and overtime they are owed running back to 1998 could drive many SMEs out of business, according to research from EFF. The manufacturers’ organisation estimates that an SME in the manufacturing sector with a £30m annual revenue can expect to face a £2.5m bill, with NI and pension contributions adding on a potential £250,000. Neil Carberry at the CBI, said: “We are totally convinced the costs will reach billions and in one sector alone they have estimated £750m.”

The Sunday Telegraph, Business, Page: 3   The Mail on Sunday, Page: 83

The Small Business, Enterprise and Employment Bill 2014 Published

The Small Business, Enterprise and Employment Bill has been published today. It contains the following…

First, under clause 136, a new system for enforcing tribunal awards: an ‘enforcement officer’ will give a 28-day warning notice if a tribunal award remains unpaid. If the monies are not then paid by the Respondent, a ‘penalty notice’ will be issued. The penalty is 50% of the outstanding amount, subject to a minimum of £100 and a maximum of £5,000. If the full sum, and the penalty, are then paid within 14 days, the penalty is reduced by 50%. The penalty is payable to the Secretary of State, not the Claimant.

Second, details of the ‘outlawing zero hour contracts’, announced earlier today. Clause 139 of the Bill provides a definition of a zero-hour contract, and renders any clause which tries to stop the worker working for somebody else void.

Third, a power to amend the employment tribunal procedural rules to limit the number of postponements available to a party (clause 137), and an obligation on the tribunal to consider making a costs award if the postponement application is a late one (the concept of what a late postponement is will be set in secondary legislation).

Fourth, a power to allow the Treasury to require repayment of some or all of a termination payment in a public sector exit (clauses 140-142). All the details will appear in secondary legislation.

Fifth, under clause 135, a framework requiring prescribed persons under the whistleblowing legislation to publish details of disclosures made to them (this is subject to detailed secondary legislation, not yet published).