It was reported recently that Amazon faced a fine of €32 million for “excessively monitoring” staff at one of its French warehouse operations. Amazon has said that it intends to appeal against the fine, but the case has highlighted the extent to which some employers are using technology to monitor the activities of their workers. According to TUC research, over 60% of workers feel that they have been subjected to some form of surveillance or monitoring in their current or most recent job. More anecdotally, it seems that some of the surge in monitoring may stem from the increase in hybrid working or working-from-home arrangements over the past few years.

The level of monitoring seems to vary between industry sectors. Some organisations opt for mainstream tools (such as tracking emails and timekeeping) while a minority opt for more intrusive means (such as live webcam footage and tracking locations during work hours). However, employee surveys are clear on one thing across the board; if monitoring is too intensive or does not respect the employee’s privacy, it can damage trust, cause undue stress and reduce productivity. In some circumstances, it could also breach employees’ legal and human rights.

Data protection law does not prevent employers from monitoring employees, but if they choose to monitor staff activities they must do so in a way which is compliant with the law. The Information Commissioner’s Office (ICO) recently published guidance to help employers understand their obligations.

Below we have set out some “Do’s and Don’ts” for employers to consider when reviewing their policies and procedures on remote working and surveillance:

Do:
• Consult with employees (and any representatives) before introducing any form of monitoring. Try to agree a policy that includes employee input/ideas.

• Try to ensure transparency. You must tell employees about any monitoring arrangements and the reason why the monitoring is needed, except in very limited circumstances (for example, if the monitoring is intended to identify potential criminal activity).

• Carry out an “impact assessment” to decide whether and how to monitor employees. This should include consideration of the following:

Identifying benefits vs. negative impact of the monitoring.
What is the least intrusive way to get the data you need?
• Ensure you have clearly identified a lawful basis for processing employee data (such as legal obligation, contractual agreement, or consent – but see more about consent below)

• Make the personal information collected through monitoring available to employees if they make a Subject Access Request.

Don’t:
• Assume that because monitoring is documented or explained to employees that it is automatically lawful. In particular, Article 8 of the Human Rights Act 1998 (right to private life) is potentially relevant here. For those who work from home, expectations of privacy are likely to be much greater at home than in the office and the risks of inadvertently capturing information about an employee’s family and private life are inevitably higher.

• Rely solely on consent as a legal basis for processing personal data – this is usually not appropriate, because of the presumed imbalance of power between employee and employer. If consent is relied upon, you must ensure that it is explicit and that it can be withdrawn at any time without detriment.

Whilst the ICO guidance is fairly long and detailed, it is worth a read, not least because the ICO has various powers to take action for breaches of data protection rules. This includes the power to issue enforcement notices and big fines of up to the higher of £17.5 million or 4% of a company’s annual worldwide turnover for very serious breaches.

If you would like advice on the matters discussed in this article, please contact any member of our Employment Team.

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Returning to the Office – Mayo Wynne Baxter

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Employees have the right to resign and claim constructive dismissal where they believe their employer has behaved in a way which amounts to a fundamental breach of contract.

The breach by the employer could either be one serious incident, or it could be a series of events which culminates in a ‘last straw’ incident.

However, in the period in between an alleged breach and an employee resigning, it is possible that the employee’s actions may mean they are deemed to be willing to continue their employment despite the breach having occurred. If so, that would mean the contract of employment had been ‘affirmed’ (i.e. the employee can no longer take action regarding the breach).

Affirmation did not take place after three-month delay
The recent Employment Appeal Tribunal case of Leaney v Loughborough University considered whether the Employment Tribunal had correctly decided that an employee had affirmed his contract of employment by waiting three months in order to resign following a ‘last straw incident’.

The Employment Appeal Tribunal found that whilst the passage of time between the ‘last straw’ and the date the Claimant had resigned was relevant, the Employment Tribunal had focused too much on this and had failed to adequately consider other circumstances surrounding the delay.

Other factors to consider
The Employment Appeal Tribunal highlighted a number of factors that it felt should have been considered in determining whether or not affirmation had taken place.

The Claimant had 40 years’ service. Whilst it was not a point specifically raised by the Claimant, the Employment Appeal Tribunal made the point that the decision to resign would be likely to be a more complex decision for someone with such significant length of service. Therefore, it may be reasonable to allow someone with a longer length of service more time for them to reach the decision to resign.

The varying demands of the employee’s role should also be considered. In this particular case, Dr Leaney had felt that he had to leave his resignation until a later date due to him being in the middle of a peak period of work. The Claimant felt that resigning immediately after the ‘last straw’ incident would have been detrimental to students at the university, and that was one of the reasons he had waited.

In addition, during the delay, the Claimant’s solicitor had been negotiating with the employer in an attempt to resolve the issues. The Employment Appeal Tribunal felt that the Tribunal had failed to properly consider this as evidence that the Claimant had not affirmed his contract, but instead was allowing the employer one last opportunity to ‘put things right’ prior to resigning.

The Employment Appeal Tribunal was also critical of the Employment Tribunal for focusing too much on things that hadn’t happened, as opposed to things that had happened. It felt it was relevant that the period of the delay was at partly the university summer holidays.

Conclusion
It is clear from the case that there is not a set amount of time between a fundamental breach or ‘last straw’ incident and an employee’s resignation which will guarantee that a contract of employment will or won’t be affirmed.

Whilst the amount of time that has passed will be an important factor to consider in determining whether affirmation has taken place, the specific circumstances of the case will always need to be taken into account in order to determine the length of time that is reasonable.

If you would like assistance with a potential constructive dismissal case, please contact any member of our Employment Team.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Draft regulations have recently been published which will give greater flexibility to employees who are taking paternity leave.

The Paternity Leave (Amendment) Regulations 2024 will come into force on 8 March 2024. The changes will apply to parents of babies whose expected week of birth begins after 6 April 2024 or, in adoption situations, where the expected week of placement is on or after 6 April 2024.

The current law
Currently, eligible employees can take either one week or two consecutive weeks of leave within the first 8 weeks of childbirth, or the date of placement. Employees must inform their employer of their intended leave dates at least 15 weeks before the expected week of childbirth.

In the context of adoption, employees must inform their employer of their intention to take leave within 1 week after receiving notification of being matched with a child.

The new changes coming into force
The changes are as follows:

• Employees will have the option of splitting their paternity leave into two separate one week blocks if they wish. This is in response to criticisms of the previous system for being too rigid and inflexible.

• Paternity leave will be able to be taken at any time within 52 weeks after birth, (or the date of placement in instances of adoption).

• Employees will be required to give notice at least 28 days before any period of paternity leave they wish to take. Employees will still need to notify their employer that they are entitled to take paternity leave 15 weeks before the expected week of childbirth or within 1 week after receiving notification of being matched with a child.

What will the changes mean for employers?
Employers should make themselves and their managers familiar with these more flexible arrangements for paternity leave and be prepared to receive requests for paternity leave with less notice than they are used to.

It will also be a good idea to update your paternity leave policies and procedures in order to ensure they reflect the new regulations. Please contact any member of our Employment Team if we can be of assistance with this.

It will be important to be aware that your employees could potentially be covered by these new rules even where babies are born before 6 April. This is because the new rules are governed by whether the baby is due on or after 6 April, rather than when the baby is actually born – and inevitably some babies will arrive earlier than planned!

At the moment, a significant proportion of employees do not take their full entitlement to paternity leave, with many preferring to use their annual leave entitlement for all or part of their time off instead. This is mainly due to the low level of statutory paternity pay (the current rate is £172.48 per week). The new rules won’t involve any changes to paternity pay, so it will be interesting to see whether or not the increased flexibility offered by the new regime will be enough to encourage a greater take up of paternity leave among employees.

If you would like advice on a situation regarding paternity leave, please contact any member of our Employment Team.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Earlier this month the Employment Tribunal decided a claim a case brought against the Financial Conduct Authority (FCA) that arose following the FCA’s rejection of a flexible working application.

The employee, a manager of a team of four, had worked from home for some time. When the FCA mandated that all its staff return to the office two days a week, she made a request to continue to work from home full time. Her request was rejected because her employer felt that it would have a negative impact on her (admittedly good) performance and that of her team if she solely worked at home. She disputed this and disagreed with her manager’s view that attending meetings virtually would be detrimental.

The Employment Judge agreed with the employer and said he was satisfied that they had ‘given detailed consideration’ to the request, and that ‘real issues had been identified that working exclusively from home would have a detrimental impact on performance and quality’.

A note of caution however, because this case does not set a precedent that employers can rely upon to insist that all of their staff work from the office in future.

It is a first instance decision, which means that other Employment Tribunals are not required to follow it. In employment disputes it is very rare to find two cases that are identical in their facts – and it is the facts of a matter that a case will always be decided upon.

It’s clear from the decision that the employer gave genuine and thorough consideration to the request to work from home, and that they had objective business reasons to reject it. This is the lesson that employers should take from this case.

The rejection may have come as a surprise to the employee, bearing in mind she had previously worked from home for a considerable period, with no obvious detrimental impact on her performance. However, employees are only entitled to request flexible working (rather than being entitled to work flexibly) and an employer who has one or more of the prescribed reasons to reject that request is well within their rights to do so.

Employers should take this decision as an opportunity to review their own flexible working request policies and provide training to their managers on the eight prescribed grounds upon which a request can be rejected. They should also remember they must be able to demonstrate how their grounds apply, rather than simply throwing out reasons without proper consideration. For example, if an employer believes that granting the request would have a detrimental impact on performance, they should set out exactly what they believe that detrimental impact would be.

For managers particularly, collaboration and mentoring are an important part of their role, and this is more difficult to do remotely. Also important to bear in mind is that monitoring your team’s well-being (a fundamental task for a manager) is often best done in person.

As in all things, balance is what is important. A business needs to thrive, and it can only do that when its employees thrive. Employers seeking to get their best out of their staff should genuinely consider whether remote working for at least part of an employee’s contracted hours will help them perform at their best, especially when those employees have caring responsibilities.

The employee in the FCA case did not mention discrimination, but employers should be aware of possible claims of that nature when rejecting flexible working requests. If a flexible working application is made by an employee to help them cope with matters associated with a disability, employers should be sure to avoid indirect discrimination.

The rules around flexible working will be changing in April 2024, so now is the time for employers to take stock of their obligations. If you’d like advice on this then please do contact any member of our Employment Team.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

I am sure that many of you will remember the saga of Employment Tribunal fees – after first being introduced in 2013, they lasted until 2017 when the Supreme Court ruled that they prevented access to justice and were therefore unlawful.

This week we received the news that the Government is consulting about reintroducing fees for bringing Employment Tribunal claims. Although it is just a consultation at the moment, the way it is worded suggests it is highly likely that fees will be coming back, and probably soon!

The new proposals are different from the previous regime as the Government says it has carefully considered the Supreme Court’s decision. We bring you the key points from what is now being proposed.

The fee will be £55
One of the things that led to the downfall of the previous fee system was that it was found to be too expensive, and therefore caused problems to those who had genuine claims but could not afford to bring them. When fees were first introduced in 2013, the number of claims went down by around half.

To try to address this problem, the Government is proposing one flat fee of £55 for Employment Tribunal claims, which it describes as ‘modest’. (As a comparison, the 2013 fee for issuing a discrimination claim was £250, with a separate fee of £950 if the case went to a final hearing, i.e. a total of £1,200.)

The idea is that the fees will make some contribution towards the costs of running both the Employment Tribunal system and the ACAS early conciliation process. However, they won’t really go anywhere near covering the cost. It is thought that the new fees would generate around £1.3 to £1.7 million per year, but the Employment Tribunal system costs around £80 million per year.

It will be one fee whatever the claim, and will cover the whole claim
The previous rules had different levels of fees depending on the complexity of the case, and also required a separate fee for when a case went to a final hearing.

The Government says it is keen to make the new fee regime simple to administer, and therefore the £55 fee will apply regardless of the type of claims being pursued. Interestingly, in cases where multiple Claimants are bringing claims at the same time, the claim fee would still only be £55 in total.

The fee would also cover the whole of the claim’s journey through the Employment Tribunal system, so once the claim fee has been paid at the outset, there would be no further fees to pay. The consultation doesn’t mention what would happen if an employer makes a counterclaim, so we assume that there are no plans to charge a separate fee in that situation.

There will be help for those who can’t afford the fees
As was the case previously, support will be available for those who are not able to afford the fees. The system is called ‘Help with Fees’ (HwF) and is already operating in other types of case.

Fees won’t apply to claims from the National Insurance Fund
The main exception from the fees that would apply is that if someone needs to claim certain payments (such as a statutory redundancy payment) from the National Insurance Fund because their employer has become insolvent, then they will not be required to pay the fee.

When will this apply?
The consultation was launched on 29 January and is due to last until 25 March. Reading through the proposals (which are available here), although the consultation of course invites comments from interested parties, it does seem highly likely that the fees will be implemented, and I expect that the Government would want to do so as quickly as possible. We will of course keep you updated on developments in our future ebulletins.

What will the effect be?
The impact of these fees will be much less dramatic than the 2013 version because this time the fee has deliberately been set at a “modest” level that would not create a barrier for most people who are thinking of bringing a claim.

Where claims succeed, the employee will be able to claim the £55 from the employer.

However, at a time when Employment Tribunals are still battling with large backlogs, it remains to be seen whether they have sufficient resources to manage the additional administration that will be involved in dealing with the new fees.

If you would like advice on an Employment Tribunal claim, please contact any member of our Employment Team who will be happy to help.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.