What is your name, job title and company?
Richard Nicolle, Partner in the Employment Department at Stewarts Law LLP.
What recent employment law issue has grabbed your attention?
The European Court of Human Rights case of Barbulescu v Romania appears to have attracted a lot of media attention; a case which concerns employers’ ability to monitor employees’ private communications at work (dubbed the “snoopers charter”).
The European Court considered whether an employer had violated an employee’s rights to privacy under Article 8 (the right to respect for private and family life, the home and correspondence). The employer, a private company, had dismissed Mr Barbulescu for having used the company’s internet for personal purposes during work hours and in breach of internal regulations. The Court held that the monitoring of the employee’s use of the internet, and his subsequent dismissal, was justified, and it deemed it not unreasonable that an employer would want to verify that employees were completing their professional tasks during work hours.
How would you advise employers to tackle the issues you mention above?
In reality this case has not given employers unfettered discretion to rummage through employees’ personal emails. Employers would be wise not to take this decision – which incidentally has not introduced any new law – as a green light that they can start snooping on their employees’ personal communications (a point rightly raised since by the European Trade Union Confederation). It is also notable that the Messenger account that was monitored in this particular case, was set up for the purposes of work.
To the extent that such monitoring is deemed necessary by an employer, they should be clear about the reasons why they are doing so and should ensure they have suitably well drafted and clear rules and procedures in place for their employees.
Are there any upcoming employment law updates that employers need to be mindful of?
At Stewarts Law we act for businesses in a wide range of sectors, as well as senior executives, with a particular focus on banking and financial services.
As such, one upcoming change that is of significant interest to our clients – both employers and employees - is the introduction of the Senior Managers and Certification Regime, which comes into force on 7 March this year. This will result in an increase in the scope and degree of individual accountability for certain senior individuals, and firms being responsible for certifying certain types of individuals as ‘fit and proper’ to perform their duties, rather than the regulator.
Are there any upcoming employment law updates that employers need to be mindful of?
At Stewarts Law we act for businesses in a wide range of sectors, as well as senior executives, with a particular focus on banking and financial services.
As such, one upcoming change that is of significant interest to our clients – both employers and employees - is the introduction of the Senior Managers and Certification Regime, which comes into force on 7 March this year. This will result in an increase in the scope and degree of individual accountability for certain senior individuals, and firms being responsible for certifying certain types of individuals as ‘fit and proper’ to perform their duties, rather than the regulator.
Could you indicate how these updates will affect day to day working?
Perhaps the most focal new requirement under the senior managers regime will be that firms must provide ‘statements of responsibility’ for senior managers, setting out areas of personal responsibility and accountability. In particular, there could be a potential problem regarding the extent to which banks seek to make amendments to individual contracts of employment to give contractual effect to those responsibilities. Many managers may seek to negotiate and minimise the allocation of such prescribed responsibilities.
What systemic changes do you anticipate in the coming years from an employment law perspective and how can employers prepare?
On 7 September 2016, new FCA and PRA rules on whistleblowing will come into force which aim to promote a culture of openness and actively protect whistleblowers. The rules will apply to UK deposit-takers with assets of £250 million or greater, PRA-designated investment firms and insurers subject to the Solvency II Directive and the Society of Lloyd's and managing agents.
The key changes will result in firms having to appoint a "whistleblowers' champion"; ensure they have in place internal whistleblowing channels; provide information and training to staff; report to the Board at least annually and ensure that any settlement agreement states that the worker is not prevented from making a protected disclosure.