Gordons Legal Employment Update – 15 September 2017

In the last two weeks, the Presidents of the Employment Tribunals have issued new guidance on the level of damages which may be awarded for injury to feelings, Acas has published advice on supporting parents with ill or premature babies, and the European Court of Human Rights has given an interesting judgment on monitoring workers’ emails.

New ‘Vento’ bands following consultation

We reported in an earlier E-brief that a consultation was underway with a view to increasing the levels of damages for injury to feelings, the so-called ‘Vento band’ compensation which is payable in discrimination claims (named after the 2002 case in which the Court of Appeal identified three bands of damages which may be awarded according to the seriousness of the injury).  Following closure of the consultation on 25 August 2017, the Presidents of the Employment Tribunals have now issued new guidance.

For claims presented to the Employment Tribunal on or after 11 September 2017, the new bands will be as follows:

Lower band (least serious cases):       £800 – £8,400

Middle band:                                            £8,400 – £25,000

Upper band (most serious cases):      £25,000 – £42,000

Exceptional cases:                                  Over £42,000

The new values have been calculated with reference to the Retail Price Index and applying a 10% uplift in line with the judgment in Simmons v Castle.  The Presidents of the Tribunals will review, and if necessary amend the parameters of the Vento bands in March 2018, and annually thereafter.

Comment:      Although the potential awards for injury to feelings have increased significantly as a result of this guidance, it should be noted that the Vento bands had not increased since 2009.  The Employment Tribunal will retain its discretion as to which band applies and where within the band the appropriate award should fall.

Acas guidance on supporting parents with ill or premature babies

Acas have published new advice for parents of ill or premature babies (those born before 37 weeks gestation), and their employers.  The guidance sets out the employee’s responsibilities during pregnancy, and offers advice to employers in supporting parents following the birth of an ill or premature baby.

If the baby is ill or born prematurely, the guidance identifies various ways that the employer may support the parents, for example by:

• Considering helping them to meet unexpected costs associated with the birth, for example, by providing a loan or an advance of salary;
• Reminding them of the need to provide the MAT B1 form where appropriate;
• Ensuring all communications with them are handled sensitively;
• Being flexible in allowing any request for time off work from the father or partner of the mother;
• Reminding them of their entitlement to parental leave, paternity leave and/or special leave;
• Finding an appropriate balance between meeting the needs of the business and those of the new parents when they have returned to work; and
• Being flexible in allowing new parents time off to attend any additional follow-up medical appointments the baby may have.

Comment:      With over 95,000 ill or premature babies born each year in the UK, the new guidance from Acas will be relevant to many employers and employees.  While the law in this area has not been subject to a recent change, the guidance serves as a useful reminder of both the work-related benefits new parents are entitled to and the need for employers to adopt a compassionate and flexible approach to dealing with employees who are going through a life-changing and potentially stressful experience.

Monitoring Workers’ Emails

In an unusual development, the Grand Chamber of the European Court of Human Rights has reversed the 2016 decision of the Chamber of the ECtHR in Barbulescu v Romania, finding that employers do not have the unfettered right to monitor their employees’ private communications at work.

The circumstances of the case are that, in breach of his contract of employment, Mr Barbulescu had used a Yahoo messenger account to send and receive personal messages at work, the discovery of which resulted in his dismissal.  In considering whether Mr Barbulescu’s privacy had been breached, the Chamber of the ECtHR determined that his employer had acted lawfully in monitoring his private communications at work.  The main question before the 17 member Grand Chamber of the ECtHR was whether Mr Barbulescu had a reasonable expectation to privacy in the circumstances.  The Court found in Mr Barbulescu’s favour, acknowledging that his privacy had been breached, not least because his employer did not give him prior warning that his communications could be monitored.

Comment:      While this judgment may, on the face of it, be a victory for employee rights, it should be considered in context.  It should be noted that the Court did not find that the actual act of an employer monitoring his employee’s communications to be unlawful, rather that in this instance the employer didn’t follow a proper procedure in doing so.  It would appear that if an employee is aware that he shouldn’t send personal messages while at work, and if he is warned that his communications may be monitored, then it remains lawful for an employer to monitor those communications in the workplace.  This highlights the importance of having a good policy in place and reminding employees of that policy.

If you require any further information on the above developments then please do not hesitate to get in contact with a member of the Employment Team, on the following number 0113 227 0100.