Employment Law E-Bulletin Issue 44

• Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 – Employer vicariously liable for employee’s violent assault on customer
• Barbulescu v Romania – 61496/08 [2016] ECHR 61 – Monitoring of personal messages on work-related internet messaging account did not breach right to privacy
• National minimum wage rates from 1 October 2016
• Autism in the workplace
• 801,000 workers on zero hours contracts

Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 – Employer vicariously liable for employee’s violent assault on customer

An employee worked at a petrol station. The petrol station had a Morrisons’ supermarket attached to it and the premises were owned by Morrisons. The employee’s job was to serve customers, and see that the petrol pumps and kiosk were kept in good working order.

Mr Mohamud, a man of Somali origin, stopped at the station on 15 March 2008 and asked if he could print some documents from a USB stick.  The employee, one of 3 members of staff on duty at the time, replied in expletive terms that it was not. Mr Mohamud objected to being sworn at and the employee ordered him to leave, using foul and racist language.

Mr Mohamud returned to his car. As he was about to drive off, the employee pursued him, opened the passenger door and told him not to come back. Mr Mohamud told the employee to get out of the car and the employee punched him in the head and attacked him further. The employee ignored the instructions of his supervisor, who had tried to stop him.

Mr Mohamud brought a personal injury claim for assault against Morrisons, claiming that it was vicariously liable for the employee’s violent acts. Vicarious liability is a form of secondary liability for wrongs committed by another person.

The Supreme Court considered the nature of the employee’s role and whether there was a sufficient connection between his position and his wrongful conduct to make it right for Morrisons to be liable. It held that his actions were sufficiently connected to his employment for it to be just that Morrisons should be vicariously liable.

In assessing vicarious liability, the courts will take a broad approach to the question of whether wrongdoing is closely connected to the duties or field of activities of an employee.

Barbulescu v Romania – 61496/08 [2016] ECHR 61 – Monitoring of personal messages on work-related internet messaging account did not breach right to privacy

Mr Barbulescu was an engineer for a heating company in Romania.   At his employer’s request, he set up a Yahoo Messenger account to deal with client enquiries.  In July 2007, Mr Barbulescu was notified by his employer that his communications over the course of a week had been monitored and that he had been using the account for personal purposes.  He had exchanged messages with his brother and fiancée, and some of the messages contained intimate personal information about his health and sex life. Mr Barbulescu was disciplined and dismissed for unauthorised personal use of the internet. His challenge against his dismissal was unsuccessful and he therefore brought a claim against the Romanian government, arguing violation of Article 8 privacy rights.

The European Court of Human Rights (“ECHR”) held that, whilst Mr Barbulescu’s Article 8 rights had been engaged, the interference had been proportionate and the Romanian court had struck the correct balance.

Employers should note that, whilst media coverage of this case within the UK gave the impression that the court had given employers the green light to snoop on employees’ personal emails; this is far from the case.  Barbulescu v Romania is unusual in its facts.  Most UK employers allow, or at least tolerate, some personal internet and telephone use at work.  As a result, the scenario in this case is unlikely to arise in practice.

Employers should, however, be mindful that monitoring employees’ use of email and the internet involves the processing of personal data and so the Data Protection Act 1998 must be considered. There is also the Regulation of Investigatory Powers Act 2000 to bear in mind. If you would like further advice please contact us for more information.

National minimum wage rates from 1 October 2016

The government has fully accepted the Low Pay Commission’s recommendations for this year.  As a result, the following hourly rates of national minimum wage will apply from 1 October 2016:

• the rate for workers aged 21 to 24 will increase by 3.7% up to £6.95;
• the development rate for workers aged 18 to 20 will increase by 4.7% to £5.55;
• the young workers rate for non-apprentices aged under 18 but above compulsory school age will increase by 3.4% to £4.00; and
• the apprenticeship rate will increase by 3% to £3.40.

The National Living Wage also came into force on 1 April 2016. This applies to workers aged 25 who are now entitled to £7.20 an hour. This will not change on 1 October 2016.

Autism in the workplace

The Business Disability Forum has published a report to examine current practice in the employment of people with autism. This suggests key recommendations for employers, including the importance of autism awareness based on removing barriers, making adjustments and the importance of communication translation.

Square Holes for Square Pegs: Current Practice in Employment and Autism can be viewed here.

801,000 workers on zero hour contracts

The Office of National Statistics (“ONS”) recently announced that, for the period October to December 2015, the number of employees on zero hour contracts in their main employment was 801,000. This is the highest it has been since ONS started monitoring zero hour contracts and means 2.5% of the United Kingdom’s workforce is on a zero hour contract.

Employers should note that exclusivity terms in zero hour contracts are no longer enforceable. Exclusivity clauses include any provisions in zero hour contracts which prevent workers from working under another contract or arrangement or working under another contract or arrangement without an employer’s consent. In addition, the Zero Hours Contracts (Redress) Regulations 2015 came into force on 11 January 2016, which gives zero hour workers the right not to be unfairly dismissed if the reason, or principal reason, is that they have failed to comply with an exclusivity clause and also the right not to be subject to a detriment in the same circumstances.