A year of living dangerously

first_imgA year of living dangerouslyOn 1 Dec 2000 in Personnel Today Comments are closed. Related posts:No related photos. This has been a particularly tricky start to the new millennium, withcomplex new legislation and some controversial tribunal decisions making itever harder to stay on the right side of the law. Addleshaw Booth’s employmentteam takes a fictional look at some of the difficult day-to-day decisions facedby your average HR department in 2000ReferencesCompany A has been asked to provide a reference for Miss J. On checking thepersonnel file they find it contains details of complaints made about her,although the complaints have never been fully investigated. Thinking it isobliged to be truthful, the company discloses the complaints. AB comments:  Company A isunder an obligation to ensure the reference is fair and reasonable. Failure todo so may result in a claim of misrepresentation and/or negligence by thepotential new employer, and may also be a breach of the implied duty of trustand confidence that it has to its employee. However, simply disclosing the factthat complaints were made about Miss J is not enough; an accurate and truthfulreference is not necessarily a fair and reasonable one. Further, according to the recent case of TSB v Harris it is running a riskof a constructive dismissal claim by passing on negative information about MissJ of which she has not been made aware. Therefore, before writing the referencethe company should have made her aware of the complaints on the file and givenher the opportunity to comment. Sexual HarassmentCompany B has received a complaint of sexual harassment involving anemployee who has been sending offensive e-mails to a fellow employee duringworking hours. It has an e-mail policy in place and an equal opportunitiespolicy, both of which, it feels, adequately cover this conduct. The companysays it doesn’t think it can do more and takes no further action. AB comments:  Company B hasnot necessarily done enough to combat a claim of sexual harassment. Havingpolicies in place and bringing them to the attention of staff is obviously veryimportant but may not be enough to avoid the company being liable for an act ofharassment. The EAT emphasised in the case of Canniffe vs East Riding of YorkshireCouncil earlier this year that, in discrimination cases, employers need toconsider what further reasonably practicable steps they could take, such asspeaking to the individual concerned once they become aware of the problem, andensuring staff receive training in equal opportunities issues. It is no defencesimply to argue that those further steps would not have prevented theharassment. Unfair DismissalCompany C has just finished an investigation into discrepancies in thefiling of an expenses claim by Mr J. It is satisfied that its disciplinaryprocedure has been thorough and fair and that Mr J is guilty. Mr J has ablameless record and is a long serving member of staff and, feeling it is aborderline decision, the company decides it dare not dismiss him. AB comments:  Company C may beconcerned that an employment tribunal may take the view that Mr J’s conduct isinsufficiently serious to justify dismissal. But even if its decision wasdeemed “wrong” in the eyes of an employment tribunal, it would notnecessarily mean the dismissal was unfair. Provided it had followed a fair procedure and had a genuine belief that theemployee is guilty, the tribunal could not substitute its own decision for thatof Company C. E-mail and Internet AbuseCompany D instigates a policy to monitor staff e-mails to protect thecompany’s computers from viruses. Accordingly, it starts to intercept thosestaff e-mails which have attachments in order to check they are not a threat.It has an e-mail policy in which it reserves the right to do this. AB comments:  New rules wereintroduced in October 2000 which regulate this area (the Telecommunications(Lawful Business Practice) (Interception of Communications) Regulations 2000).These regulations dispense with the need to get consent to monitoring inspecific circumstances, which include monitoring to ensure the effectiveoperation of the system. However, the company must make all reasonable efforts to inform its staffthat monitoring may be carried out. Therefore, while having an adequate e-mailpolicy in place is good practice, it should also go further and ensure itbrings the policy to the attention of its employees. TupeCompany E is being taken over and it is engaged in a consultation process asrequired by Tupe. But a number of staff object to transferring to the purchaserof the business because their working conditions will be worse than at present.The company is concerned about the liability it may face if they resign becausethere are more than 50 of them and it could prove costly. AB comments:  Following therecent case of University of Oxford v Humphreys, if the objecting employeesresign they may be able to bring a claim for damages for wrongful dismissal orunfair dismissal on grounds that the proposed transfer, on worse terms,constitutes a constructive dismissal. If their claims are upheld, any liabilityarising would remain with company E, because the employees’ contracts would nottransfer where they have objected to the transfer. This means that it isparticularly important Company E obtains an indemnity from the purchaser againstthis potential liability. Human RightsCompany F has an e-mail policy that allows the company, which is a privateorganisation, to track and read e-mails sent by members of staff, if it isnecessary as part of an investigation into abuse of its e-mail system. But withthe coming into force of the Human Rights Act 1998, which gives rights ofprivacy to individuals, the company is concerned it is in danger of breachingits employees’ privacy rights. AB comments:  The Act does notcreate direct obligations towards staff outside the public sector and,therefore, Company F is not covered by the Act directly. But employmenttribunals and courts are now required to interpret existing UK employment lawin line with the principles of the European Convention on Human Rights and itsassociated case law. This means that if Company F ends up in a dispute with an employee, thetribunal or court would consider the way in which it had gathered informationabout the employee in the light of human rights legislation. Article 8 of the Convention provides for the right to respect for privateand family life, home and correspondence and this extends to the workplace. Thecase law under the convention, however, makes it clear that employees cannotexpect privacy if they are made aware that their employer reserves the right tocarry out monitoring. Company F appears to have a legitimate purpose for monitoring, and has ane-mail policy in place that reserves the right to monitor in thesecircumstances. Therefore, provided it brings the policy to the notice of staff,it should be able to defeat their expectation of privacy and so avoid breachingtheir privacy rights. Previous Article Next Articlelast_img

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