Recent case law on monitoring, dismissal and references

Recent case law on monitoring, dismissal and references
A Romanian case on Yahoo messaging at work prompts a flurry of press reports, constructive dismissal is tested in the EAT, and an adverse verbal reference leads to successful disability discrimination claims against both former and prospective employers
Online monitoring
A recent decision of the European Court of Human Rights, Barbulescu v Romania, caused a sensation in the UK press. Headlines such as The Telegraph’s ‘Bosses can snoop on workers’ private emails and messages, European court rules’, were typical of the press coverage. But this is not the whole story.
The case involved an engineer in charge of sales for a Romanian company who was caught by his employer using a Yahoo Messenger account, set up to enable him to answer client enquiries, for his own purposes. He was messaging his girlfriend and his brother and some of the messages related to his sexual health. Using the account for personal messages breached company policy but Barbulescu claimed his employer had infringed Article 8 (right to respect for private and family life, home and correspondence) of the European Convention on Human Rights by ‘snooping’ on his messages and using these as a reason to dismiss him.
The court decided it was reasonable for Barbulescu’s employer to check the Yahoo account, especially since its original search was for client-related communications, and employees were aware such accounts were not for personal use.  It ruled in the employer’s favour, deciding on balance that the employee’s privacy rights had not been breached.
Andrew Dyson, a partner in DLA Piper’s data protection and privacy group, said the case clarifies that monitoring employees’ online activity is legitimate if employers have concerns about employee behaviour, but that it has to be carried out “in a proportionate manner and in line with a clearly articulated policy set out to all members of staff”.
Employment partner at law firm CMS Sarah Ozanne, said the decision “doesn’t mean that UK employers are able to freely pry on their employee’s personal communications. The facts of this case are very specific. But it is a warning to employees that they cannot assume that their personal communications at work won’t be monitored, and a salutary reminder to employers that they cannot do so unfettered.” Employers had to act with “reasonableness and proportionality,” she said. She also pointed out that while the decision must be taken into account by UK courts, they are not bound by it..
Sue Kelly, a partner in the employment team at Winckworth Sherwood, said this area of law was a “minefield” for employers, and while it was possible to limit the risks by using written policies, “there is a limit on how far employers can go, and a blanket ban on any private emails or messages being sent at work, or routine scrutiny of all such communications, is likely to be a disproportionate interference with employees’ right to privacy under the Human Rights Act.”
Richard Fox, head of employment at law firm Kingsley Napley, said the facts in the case dated back to 2007 so it did not necessarily strike at the heart of the main problem for employers in this area now, which concerned employees using their own phones and tablets for work purposes during working hours.
“What can employers do to ensure that employees remain focused on their work?” he asked. “Are they able to check personal devices to see that electronic exchanges taking place in work time are genuinely of an emergency nature, and are not excessive in terms of time? That, I suspect, will be the next issue to be clarified for employers.”
Constructive dismissal
A case in the Employment Appeal Tribunal (EAT), Frenkel Topping v King, has confirmed that it’s not easy for employees to establish they have been constructively unfairly dismissed. The claimant in the case did succeed in this but failed to prove her treatment was a reaction to her ‘whistleblowing’, for which compensation is uncapped. Her allegations of poor treatment included unfair criticism of her performance in front of colleagues and threats to increase her working hours.
The EAT emphasised that the employer’s actions in such cases must be “really serious” and amount to “conduct with which an employee could not be expected to put up”. Charles Wynn-Evans,‎ a partner at Dechert, said for a claim to succeed, the employer must have behaved ‘in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust’ between employer and employee.
“Some employer treatment will obviously constitute constructive dismissal,” he said, “such as failing to pay agreed remuneration or reducing an employee’s status without reasonable or proper cause. But in other cases, such as generalised poor treatment, a change of reporting lines and so on, the situation may be far from clear cut.”
References
The case Pnaiser v NHS England and Coventry City Council involved a disabled candidate who had a job offer withdrawn when her former line manager told her prospective employer over the phone that she had had significant time off work and might struggle with pressure in the new role. An agreed reference had been part of the employee’s settlement terms with her previous employer. The EAT found both employers had discriminated against her because of her disability.
Dechert partner Charles Wynn-Evans said the case demonstrates the risks for employers deviating from agreed references and that a disabled employee may still have a claim even if disability is not the only reason for an adverse reference. He said prospective employers receiving comments related to a candidate’s sickness absence “may need to consider what further investigations are necessary before a decision is made to withdraw a job offer”.