Employment Law Update - September 2019 - Vista
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Employment Law Update – September 2019

Welcome to the first employment law update for the Autumn season! It’s hard to believe that the Summer is over already. We hope that you are feeling refreshed and ready for the final quarter of 2019.

We took a short break with our updates in August, so this month’s edition is jam packed with all the recent goings-on in the world of employment law.

We’ve got cases covering:

  • The management of harassment via social media;
  • The scope of protection from discrimination on the grounds of religion/belief;
  • When an employer will be deemed to have constructive knowledge of a disability;
  • Liability for National Minimum Wage data following a TUPE transfer;
  • The enforce-ability of restrictive covenants in employment contracts;
  • The rights of agency workers to equivalent rights.

We also have an overview of the latest stats from ACAS in relation to early conciliation which makes interesting reading.

On the blog this month we are going to dive in to a couple of particularly interesting cases.

For full case updates of all those listed above, please sign up to our monthly newsletter mailing list here. 

The Management of Harassment by Social Media

The reason we wanted to focus in on this case, is that it covers a topic that many of us are still working hard to understand; social media and how it impacts on the employment relationship.

Karnis Bailey, Employment Lawyer at Vista discusses the case in this short video:

Unfair Dismissal in Phoenix House v Stockman

This case deals with an issue that we know many HR professionals have grappled with; covert recording in the workplace. Ms Stockman covertly recorded a meeting with HR to discuss a planned restructure. She subsequently succeeded in a claim for unfair dismissal.

At that stage, the employer argued that they would have fairly dismissed Ms Stockman based on the secret recording and her compensation should be reduced accordingly. The Tribunal reduced the compensation by 10%.

The employer appealed the reduction, arguing that it was too low given the seriousness of the conduct. However, the Employment Appeal Tribunal (‘EAT’) upheld the Tribunal’s decision and held that the 10% reduction reflected the chance of a fair dismissal in these circumstances. The EAT noted the following:

  • The recording of meetings is becoming more common;
  • Covert recording was not listed as an act of gross misconduct in the disciplinary procedure;
  • Recording can be done for different reasons and does not necessarily undermine trust and confidence.

The easy learning to take from this case is to be clear about your stance on covert recording and the potential consequences. However, a fair gross misconduct dismissal is still not a great outcome for an employer. A better result is to avoid the recording and/or the adverse impact in the first place. So, here are a few of our top tips:

  1. Add a line to your templates for formal meetings asking the employee to confirm that they are aware of the Company’s stance on covert recordings (as per your updated policy) and that they are not recording the meeting. This timely reminder may have a deterrent effect.
  2. Ensure that employees do not place electrical devices on the table during meetings, this is not an absolute fail safe but will reduce the prospects of any recording devices picking up the discussions and reduce the quality of the recording where they do.
  3. When having deliberations after a formal meeting, move to another room rather than asking the employee to leave the room. This will ensure that if they are recording the meeting, they will not capture anything that you would not say directly to them.

We’ll be back in November with more employment law highlights. See you soon!

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