Under European law, is a collective redundancy an 'exceptional case' permitting the dismissal of a pregnant worker?

Not always - is the opinion of Advocate-General Sharpton, in Guisado v Bankia SA - there must be no plausible possibility of reassingment. The case involved a pregnant Spanish worker dismissed in a collective redundancy exercise.

The opinion considers the interaction of the EU's Maternity and Collective Redundancies directives. Collective redundancies, involving dismissal for 'one or more reasons not related to the individual workers concerned' will not automatically be 'exceptional cases' under the Maternity Directive permitting the dismissal of pregnant workers, 'there must be no plausible possibility of reassigning the pregnant worker to another suitable post'. The opinion gave an example of all but one secretarial posts being made redundant, with the remaining post filled, an employer might reasonably be expected to reassign a pregnant worker to as an administrative assistant, but not as a driver or welder.

The opinion is not binding on full court, which will determine the issues in the case at a later date, with potential ramifications for the application of Regulation 10 MAPLE 1999. A number of questions were considered, some related to aspects of Spanish law.

Right to privacy: ECtHR reverses employee monitoring decision
We previously reported on the case of Barbulescu v Romania where the European Court of Human Rights (ECtHR) found that an employer’s potential breach of an employee’s privacy was justified when it monitored an employee’s Yahoo Messenger account. Unusually there has been an appeal within the ECtHR to the Grand Chamber and the decision has been reversed.


The case relates to a Romanian engineer whose employer asked him to set up a Yahoo Messenger account for work purposes. The employer had a strict rule in place confirming that it was forbidden to use computers for personal purposes, however there was no reference to monitoring emails or computer use. In July 2007 the company monitored Mr Barbulescu’s Yahoo Messenger account and found that he was using it for private messages with his fiancé and his brother. The contents of the messages were both professional and personal and some related to Mr Barbulescu’s sex life and his health. When initially asked about his use of the Messenger account Mr Barbulescu claimed he abided by the company rules, however he was subsequently presented with a 45 page transcript of private messages following which the company terminated his employment.

The ECtHR initially found that Article 8 of the European Convention on Human Rights (respect to private and family life) was engaged but that the Romanian courts were entitled to examine the private communications to determine whether the dismissal of Mr Barbulescu was justified.

Appeal to the Grand Chamber of the ECtHR

The Grand Chamber found that Mr Barbulescu had a right to privacy in the workplace and that he should have been warned in advance that his emails were being monitored – “it does not appear that the applicant was informed in advance of the extent and nature of his employer’s monitoring activities, or of the possibility that the employer might have access to the actual contents of his communications”. On this basis the Chamber found that the Romanian national courts had failed to protect Mr Barbulescu’s right to privacy.

When considering the expectation of privacy which an employee may have, the Grand Chamber confirmed that an employer’s policy cannot reduce private social life to zero.


Following the initial ECtHR judgment the tabloids jumped on the decision reporting employers’ right to spy on their employees. This was not the case and even when the previous judgment stood, it was still a question of reasonableness and proportionality to the business interest being protected.

With the reversal of the decision employers will have to be even more diligent and ensure that any monitoring of computer use and emails is justified. Employers should review contractual provisions and IT policies to ensure they clearly stipulate what personal use is acceptable and what monitoring could be carried out and for what purpose. Employees should be well informed of the level of privacy they can expect.

The Grand Chamber’s ruling provides a useful reminder that even with robust contractual and policy provisions in place, employers will still need to be mindful of Article 8 and will have to be prepared to justify any action they take. The key message is still proportionality; although the case serves as a useful reminder for employers and employees, the law remains the same.

The future

The ECtHR and the European Convention on Human Rights is distinct from our membership of the EU and as such this decision will stand post-Brexit. The General Data Protection Regulation (GDPR) is due in May 2018 when further guidance and regulation on employee monitoring can be expected.

Acas guidance on supporting parents with ill or premature babies
New advice has been published today to assist employers in supporting staff who have given birth to premature or ill babies.

Acas’ advice for employers includes:

• being compassionate and sensitive in all communication;
• being discrete - ask parents what they would like to tell their colleagues about their situation;
• making employees aware of statutory entitlements to leave, such as shared parental leave; and
• trying to be flexible in giving time off when parents return to work as the baby may have follow up appointments or treatment.

Business Minister Margot James said:

“Working parents deserve support at work, and those who have premature babies should expect nothing less than total backing from their employers at what can be an exceptionally difficult and worrying time."
Vacancies: Employment Lawyers, A14 Corridor (Cambridge, Bury St Edmunds, Ipswich)

Ashtons Legal is a growing firm in the East of England with a focus on providing excellent legal advice to a diverse range of trading companies, institutions and executives across our Region and beyond.

The team seeks self-starting and commercially focused employment lawyers (from NQ upwards) willing to work on an agile basis. You will find no silo working here, just a friendly and supportive team of professionals working together to make sure clients of the firm get the best pragmatic contentious and non contentious legal advice and representation there is. Our firm has a flexible and award winning reward and benefit structure, it also has a culture of openness with an innovative leadership looking to the future. Ideally, you will have links to the Region, or perhaps even an East Anglian client following you want to take to the next level, please get in touch to learn more.

No recruitment agencies please.

Tribunal Fees - Stay on Cases has been removed
Daniel Barnett
Stay on applications or claims arising out of Unison decision has been lifted in a Case Management Order issued by Presidents of the Employment Tribunals. Read more...

McDonald's employees vote to strike over pay and zero-hours concerns
The Guardian
McDonald's could face their first UK strikes with staff in Cambridge and Crayford voting overwhemingly in favour of industrial action as a result of poor working conditions and zero hour contracts. Read more...

Male police officers given £96,000 payout after they were sidelined for calling out sexism
The Telegraph
After raising concerns over sexist attitudes within the West Yorkshire Police force, two men were sidelined to back office roles. They have now been awarded £96,000 for injury to feelings and loss of overtime. Read more...

Former Lloyds boss Eric Daniels sues to claim unpaid bonuses
The Financial Times
Eric Daniels, the man in charge of Lloyds Banking Group during the credit crunch, is sueing the bank for £1million in unpaid bonuses. Read more...

Unlawfully accessing and disclosing personal data costs employee £1,700
The HR Director
A former healthcare assistant accessed and shared 29 patients data with no business purpose to do so. She has now been ordered to pay a total of £1,715 in fines and costs. Read more...

Employment Tribunal Fees - Refunds
I have been asked to distribute the following information on behalf of the Employment Tribunals (England & Wales):

"As you are probably aware, in advance of the Supreme Court’s judgment in the Unison case an undertaking was given to the Court to refund Employment Tribunal and Employment Appeal Tribunal fees, should the Fees Order be declared unlawful.

"We are now working on the detailed arrangements of the scheme to enable that undertaking to be met and we aim to ensure that the process is as simple and unobtrusive as possible for those who make an application, while ensuring that refunds are only paid to those who are entitled. There are, however, a number of points of detail that we do need to address including, for example, how to deal with refunds in claims involving multiple claimants, and how it will operate when the tribunal has ordered the opposing party to reimburse a fee.

"Please bear with us during this period, and we hope to be in a position to make an announcement on the details of the refund scheme during September."

Holiday Pay: Voluntary Overtime

Thanks to Karen Jackson of didlaw for preparing this case summary
Is pay for voluntary overtime, normally worked, 'normal remuneration' for the purposes of calculating holiday pay?

Yes, held the EAT in Dudley Metropolitan Borough Council v Willetts.

The Respondents were Quick Response Operatives working for the Council. They were electricians, plumbers, roofers and similar who, as well as working day jobs, also worked entirely voluntary overtime which paid additional standby and callout allowances.

Relying on Williams and Lock, Dudley Council asserted that overtime payments were not 'normal remuneration' because they lacked an intrinsic link to the performance of tasks required under the employment contract.

The EAT rejected this narrow interpretation. To exclude such payments from holiday pay results in a financial disadvantage to workers which deters or might deter the taking of annual leave which is a pillar of EU social law. The EAT also found a clear link between the payments and the performance of their duties because when they were working the overtime the operatives were performing the same tasks as under their contracts.

Holiday pay must correspond to normal remuneration. Put simply, 'normal pay' is that which is normally received. Normal means paid over a sufficient period of time. What would the worker have earned if they had not taken leave?
Vacancy: Part-time Employment Law Editor – XpertHR

Ready for a new career? Join a team of non-practising lawyers and subject specialists working on XpertHR, the award-winning online subscription service for HR professionals.

XpertHR has a vacancy for someone with current employment law expertise. This rewarding role offers a variety of work, directed at ensuring that employers’ needs for up-to-date compliance and good practice information are met – from commissioning practical guidance to updating international employment law guides.

You should have sound knowledge of employment law and the issues facing today’s employers. In addition to good interpersonal skills and the written communication skills necessary to explain legal issues clearly to non-lawyers, you will have a good eye for detail, an excellent command of English and good time-management skills.

You are likely to have experience of working in legal practice, or in a legal publishing environment, and to hold a law degree or equivalent qualification.

The role is a part-time (three days a week) maternity-cover position.

Pay and benefits: Salary dependent on skills and experience. Excellent benefits including 29 days' holiday.

Location: Sutton.

To apply: Email Deborah Farquharson (provide a CV and full covering letter outlining your suitability and reasons for applying).

Religious Discrimination

Thanks to Karen Jackson of didlaw for preparing this case summary.
Is it direct or indirect religious discrimination to discipline an employee who condemns homosexuality and speaks of repentance during a Prison church service? No, held the EAT in Trayhorn v The Secretary of State for Justice.

The Claimant, a Pentecostal Christian, was disciplined for elaborating on a passage from Corinthians 6 which condemned homosexuality. He resigned claiming constructive dismissal before a disciplinary was concluded which imposed a final written warning. The ET held that he had not been constructively dismissed nor had he suffered religious discrimination.

The Claimant relied on three PCPs. Were Christians singly or as a group disadvantaged by the application of the Prison's disciplinary and equality of treatment policies and was the unwritten practice of not discussing homosexuality and Christian ethics religious discrimination?

The EAT found no evidence which could lead them away from the first instance tribunal's determination that no religious discrimination had occurred. It was not the manifestation of his belief that caused the treatment but the way in which he did so which went way beyond scripture. Had it been necessary to consider whether the PCPs pursued legitimate aims the finding would have been that the aims of order and national security are wholly legitimate. Appeal dismissed.

Reductions to Basic and Compensatory Awards
Thanks to James English of Hempsons solicitors for preparing this case summary
Was it perverse to reduce a compensatory award by 35% but not also reduce the basic award?

Yes, held the Employment Appeal Tribunal in University of Sunderland v Drossou.

The Claimant was a Senior Lecturer and Programme Leader at the Respondent University. Following a restructure, she was dismissed due to an irretrievable breakdown in working relationships, for which the University said she was primarily responsible. She brought a claim of unfair dismissal (and other claims of race and disability discrimination).

The employment tribunal upheld the unfair dismissal claim, but decided that the Claimant was not wholly blameless - she was somewhere between partly and equally to blame. The compensatory award was reduced by 35%, but no reduction was made to the basic award. The University appealed.

The Employment Appeal Tribunal upheld the appeal, and reduced the basic award by 35%. In RSPCA v Cruden, the Court of Appeal had held that although the tests were different, only in exceptional cases would a differentiation between the two be justified. Since the tribunal found that the Claimant's conduct had caused or contributed to her dismissal and reduced the compensatory award, the Employment Appeal Tribunal held that it would be perverse not to reduce the basic award to the same extent.
Vacancies: Employment Solicitor (Bristol) and Employment Paralegal (Taunton)

https://gallery.mailchimp.com/875913eab2272bcca46358ddf/images/782500c2-579b-4fcd-a698-26eb125fb0e6.pngEmployment Solicitor, Bristol

The award-winning Ashfords employment team are recruiting! Reporting directly to the partner, you will act in contentious and non-contentious matters, and be involved in a wide range of high-quality, high-value work.

You will be an excellent communicator, who excels at gaining clents’ confidence; handling their matters with empathy and sensitivity. You will readily build strong and lasting business relationships, and show a genuine commitment to client care. You will already have gained a wide range of experience in employment law, and we will afford you every opportunity to further your reputation in a highly regarded firm providing national, quality work.

More details...

Employment Paralegal, Taunton

We're seeking a full time and permanent Paralegal to provide essential support to the team, by delivering high quality work with outstanding client service. It’s a great opportunity for a Law graduate to work closely with the Senior Associate in the team.

At Ashfords, we are ambitious - for ourselves, and our people. We'll support you to realise your full professional potential, whilst enjoying a positive work-life balance in a great location. Working for us, you will enjoy a range of benefits, including life assurance, private health and medical insurance, and a holiday purchase scheme.

More details...

Charlotte Ferguson (c.ferguson@ashfords.co.uk)
01392 333854 / 07545 733819

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Sickness and sick pay
Sickness and sick pay

Employment Tribunal Fees - Supreme Court Decision
By now, you probably know about this morning's Supreme Court has allowed the appeal by Unison, holding that the Employment Tribunals and the Employment Appeal Tribunals Fees Order 2013 (which led to a 70% reduction in claims) is unlawful and will be quashed.

In the main judgment, the Supreme Court noted a contrast between the level of fees in the tribunal, and the small claims court (where it is very much cheaper to bring a claim for a small sum of money). Lord Reed emphasised the importance of the rule of law, and that specific statutory rights granted by Parliament may not be reduced by statutory instrument from a minister. He relied on the fact that employment tribunal cases are important for society as a whole, not just the individuals involved. If the Fees Order prevents access to justice, it will be ultra vires.

And the Supreme Court held that the Fees Order DOES effectively prevent access to justice (paras 90-98). It also held that the Fees Order imposed unjustified limitations on the ability to enforce EU rights (ie those claims based on EU law), and was thus unlawful under EU law.

Baroness Hale gave a separate, short, judgment on the indirect discrimination aspects of the fees regime. She concluded that it was indirectly discriminatory to charge higher fees for type 'B' claims (which include discrimination claims) than type 'A' claims.


First, it is unlikely the fees regime will be abolished entirely. It is probable that the government will issue a consultation paper and then bring in a new fees regime, with fees at a lower level and/or involving a fee payable by the employer when the employer lodges its ET3.

Second, the Employment Tribunals Service has its work cut out. Thought will need to be given to an immediate rewriting of the tribunal rules, and a reprogramming of the online Claim Form system.

Third, the Supreme Court made it clear that all fees paid between 2013 and now will have to be refunded by the Lord Chancellor's Department (and the Lord Chancellor has agreed to do so). This is easier said than done - many successful claims will have had fees ordered to be paid by the Respondent, and there will probably need to be a manual trawl of all decided cases.

Fourth, what about all those people who chose not to bring a claim because of the fees? Will tribunals be amenable to the argument that it was not reasonably practicable to bring a claim when a Claimant was significantly impeded from doing so by an unlawful fees regime? Or that following today's decision it is just and equitable to extend time for bringing a claim?

The final thing that needs to be said is congratulations to the legal team at Unison (here is their press release), especially Adam Creme and Bronwyn McKenna, and to Dinah Rose QC who presented the arguments before the Supreme Court. Congratulations and well done.
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