Sintons Employment Law E-Bulletin Issue 57

• Barbulescu v Romania (Application no. 61496/08) [2017] ECHR 742– An employee’s right to privacy was breached by an employer reading personal messages sent using a work account
• British Airways v Pinaud UKEAT/0291/16/DA- Employment Tribunals should consider statistical evidence in part-time worker discrimination cases
• Presidential Guidance Released on Uprated Vento Bands

Barbulescu v Romania  (Application no. 61496/08) [2017] ECHR 742– An employee’s right to privacy was breached by an employer reading personal messages sent using work account

The Grand Chamber of the European Court of Human Rights (‘’ECtHR’’) has ruled that an employer unjustifiably breached an employee’s right to privacy under the European Convention of Human Rights when it monitored the use of his Yahoo Messenger account at work.

The Yahoo Messenger account was created upon the request of the employer but it was intended for work purposes only and the employer had a strict rule in place forbidding use of the account for personal purposes. The employee, Mr Barbulescu, subsequently used the messenger system to send personal and occasionally intimate messages to his fiancé and brother. The company presented Mr Barbulescu with a transcript of these messages and terminated his employment for unauthorised use of the internet.

At no point during Mr Barbulescu’s employment had the employer informed him of the fact that the company would be monitoring the use of the account. It was this latter factor which persuaded the Grand Chamber of the ECtHR that the employer breached Mr Barbulescu’s right to privacy.

The Grand Chamber is not explicitly stating that monitoring employees’ personal use of work systems is an unjustifiable breach of their privacy. There are two considerations to be made when looking at whether or not, and to what extent, an employer can monitor their employees’ personal messages at work; proportionality and transparency.

Employees must be made aware of rules regarding personal messages in the workplace, of any systems to monitor their messages at work and how these systems will be used. Similarly, it is important that the employer has a clear purpose for the use of such systems and is not essentially breaching their employees’ privacy for the sake of it. Employers must ensure they have the least intrusive means.

British Airways v Pinaud UKEAT/0291/16/DA – Employment Tribunals should consider statistical evidence in part-time worker discrimination cases

The Employment Appeal Tribunal (‘’EAT’’) has confirmed that an employer treated a part-time worker less favourably contrary to the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, by paying them only 50% of full-time pay despite the fact they were working more that 50% of full time hours. The EAT held that statistical evidence cannot be disregarded when it comes to demonstrating less favourable treatment.

Mrs Pinaud was employed by British Airways plc (the ‘’Respondent’’) as a part-time crew member. Full time employees worked for a total of 243 days per year, giving them 122 days off. Part time employees were placed on what was described as a ‘50% contract’, with the annual basic salary being 50% of that of full time employees. However, part-time employees were expected to work 130 days out of the year, and this translates as 53.5% of the days worked by full time employees.

The Employment Tribunal found in the favour of Mrs Pinaud on the basis that she had been treated less favourably with regards to the terms of her contract. The respondent argued that the ET should consider statistical evidence in light of a bidding system it had in place which essentially allowed employees to bid for flights, which could then result in an increased number of working days. They asserted that consideration of these statistics would show that the impact of the 53.5% worker model was minimal. The ET ruled that these statistics were irrelevant.

The EAT upheld the ET’s decision in finding that the Claimant had been subject to less favourable treatment. However, it allowed the appeal on the basis that the ET’s failure to consider the bidding statistics when considering justification of the treatment was an error in judgment.

This case serves as a reminder to employers of the importance of statistical evidence when defending discrimination claims of less favourable treatment. Whilst part time employees should not be treated less favourably, this case demonstrates that statistics may be used to justify less favourable treatment where necessary.

Presidential Guidance Released on Uprated Vento Bands

On 4 September 2017, the President of the Employment Tribunals (England and Wales) and the President of the Employment Tribunals (Scotland) published their joint response to the consultation on Vento bands which took place over summer 2017.

The Vento guidelines are used by Tribunals to decide how much should be awarded for compensation for injury to feelings in discrimination claims.

The Presidential Guidance will apply to claims from 11 September 2017 onwards and stipulates that the Vento bands are as follows:

• lower band of £800 to £8,400;
• middle band of £8,400 to £25,200; and
• higher band of £25,200 to £42,000.

The Presidents will review the bands in March of each year and amend them where necessary.

The consultation followed proposed changes in the Employment Tribunal awards for injury to feelings and psychiatric injury following the decision in the recent case of Pereira de Souza v Vinci Construction UK Ltd (see detail in our bulletin Issue 55). This decision confirmed the 10% uplift established by the Court of Appeal in the Simmons v Castle case (an uplift applied to personal injury and other similar civil court claims) applies to compensation awarded in discrimination claims in the Employment Tribunal.

It is important that employers are aware of the amount of compensation that may be awarded to an employee who is successful in a discrimination claim.

The Presidential Guidance is useful for employers to gather a more detailed understanding of how the Vento bands are calculated. For more information, please find the guidance here.