A round up of the latest HR and Employment Law updates and related stories.

MONITORING EMPLOYEE’S COMMUNICATION AND INTERNET USE

A recent case in the European Court of Human Rights (the European Court), Barbulescu v Romania [2016] ECHR 61 has reviewed the question of employers monitoring employees’ personal communications at work.

Although his employer had a rule “forbidding” personal use of their IT, Mr Barbulescu used his employer’s email account to send and receive personal messages which included details about his health and sex life. His employer accidentally discovered the messages and during subsequent disciplinary proceedings Mr Barbulescu denied using his employer’s IT systems for personal use. His employers advised him that they had read at least some of his personal communication and dismissed Mr Barbulescu for breach of their rule.

Mr Barbulescu took the matter to the European Court on the basis that the original Romanian Court should have excluded evidence regarding the personal emails because the fact that the employers had read them contravened Article 8 of his Human Rights – the right to respect private life and correspondence

The European Court held that it was “not unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours” and therefore Mr Barbulescu’s human rights had not been breached. However, the Court emphasised that “workers do not abandon their right to privacy and data protection every morning at the doors of the workplace” so this case should not be regarded by employers as enabling them to check or access an employee’s personal mobile/device or access their private email which are never :

• used for work and/or
• accessed on their employer’s IT systems

Conclusion

Practice Managers should now ensure their relevant policies make it clear that:

• the employer’s IT System (including telephone and any other relevant systems) should NOT be used for personal purposes and
• the employer has the right to monitor their own IT systems (and therefore the right to access private emails or other communications on their own systems).

If a policy is clear it makes it harder to challenge any decisions made during disciplinary proceedings. However, because of the potential issues, you should take advice before reading an employee’s private communication.

CHANGES TO STATUTORY PAY – PATERNITY, ADOPTION AND SHARED PARENTAL

The Statutory Paternity Pay, Statutory Adoption Pay and Statutory Shared Parental Pay (Amendment) Regulations 2015 take effect from 1^st February 2016.

The regulations deal with the current discrepancy between Statutory Maternity Pay and the other statutory “family” pay – Paternity, Adoption and Shared Parental pay.

Basically, qualification for this type of “family” pay requires a “Continuity of Employment Test” so that an employee must have worked for their employer for 26 weeks at the “qualifying week.”  The “qualifying week” varies according to:

• birth – the end of the 15th week before the baby’s due date or
• adoption – the week in which the employee is notified of a match with a child for adoption.

The new regulations deal with the discrepancy between Maternity Pay which allows the first week of the relevant 26 week period to be “rounded up” and the other “family” pay (paternity, adoption etc) which do not. Prior to the regulations taking effect, an employee who changed jobs in the first week of the relevant 26-week period would (as relevant) be entitled to Statutory Maternity Pay, but not (as relevant) Statutory Paternity Pay, Additional Statutory Paternity Pay, Statutory Adoption Pay and Statutory Shared Parental Pay.

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