Confusion over Internet Use in the Workplace

There are many ways in which a business can be damaged if it fails to protect its data or does not have policies in place to ensure correct use of the Internet at work. However, a recent survey has revealed that British businesses are failing to take seriously the need to protect themselves and their employees from potentially damaging Internet use in the office.

More than 30 per cent of those taking part said that they do not have an acceptable use policy (AUP) for accessing the Internet at work. Of those who do, 94 per cent said they had not read it recently. Only a small percentage of AUPs cover Instant Messaging and Web mail. Furthermore, ‘blogging’ hardly registers at all as a banned Internet activity.

Says Antony Arbuthnot, “It is important to have an Internet use policy in place and to make sure that employees understand and adhere to it. The policy should be updated to reflect current trends and make clear the penalties for failing to abide by it. We can assist you in drawing up an AUP specific to the needs of your workplace.”

Partner Note
The survey was carried out by network content technology firm Chronicle Solutions.

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Disabled Employees and Sick Pay – Update

In an important judgment in a case concerning the application of sick pay policies to disabled employees (O’Hanlon v HM Revenue and Customs), the Court of Appeal has held that a sick pay policy that did not provide unlimited full pay for a disabled employee who was absent from work for long periods was not discriminatory under the Disability Discrimination Act 1995 (DDA).

Mrs O’Hanlon had been employed by HM Revenue and Customs (HMRC) since 1985. Since 1988 she had suffered from clinical depression and it was accepted that this was a disability within the meaning of the DDA. From 2001 onwards she began to take long periods of absence from work. In the four years prior to 15 October 2002 she had a total absence of 365 days of sickness of which 320 days related to her disability.

HMRC allowed all employees six months’ full pay if they were absent from work on health grounds, followed by six months on half pay, subject normally to an overriding maximum of 12 months’ paid leave in any period of four years. After that, employees were paid the equivalent of their pension rate of pay or half pay, whichever was less.

Mrs O’Hanlon claimed in the Employment Tribunal (ET) that she was substantially disadvantaged by these rules and that the failure to pay her full pay during her absence was a failure to make a reasonable adjustment to counter that disadvantage. She also claimed that she had been the subject of unjustified disability-related discrimination. Because she was not receiving full pay she was experiencing financial hardship which placed her under additional pressure, which in turn worsened her depression.

The ET held that although the effect of the sick pay rules was to subject Mrs O’Hanlon to a substantial disadvantage within the meaning of section 4A(1) of the DDA, the adjustment she sought was not a reasonable one. The ET also found that there was no disability-related discrimination, but even if there was, it was justified.

The Employment Appeal Tribunal (EAT) found that it would be rare to find a case where the duty to make reasonable adjustments would entail paying a disabled employee who is absent from work a higher rate of sick pay than would be payable to a non-disabled absentee. This would amount to positive discrimination in favour of the disabled employee rather than prevention of discrimination against them. The DDA is intended to recognise the dignity of disabled people and to require modifications to enable them to play a full part in the world of work, not to treat them as ‘objects of charity’, which could in fact act as a positive disincentive to return to work.

In the EAT’s view, although the ET had erred in law in concluding that there was no disability discrimination when reducing the pay of someone absent from work on account of their disability, it was entitled to find that any such discrimination was justified if the normal rule in that place of employment is to reduce an employee’s pay if he or she is absent from work. There had not therefore been a breach of the DDA.

The Court of Appeal judged that the EAT was right to dismiss Mrs O’Hanlon’s appeal. In its view, it would be wholly invidious for an employer to have to decide whether to increase payments to sick employees by assessing the financial hardship suffered by the employee or the stress resulting from lack of money – stress which no doubt would be equally felt by a non-disabled person absent for a similar period.

Employers will not be guilty of unlawful discrimination for applying their standard sick pay policy to disabled employees who are absent on account of their disability. For advice on all discrimination issues, please contact Antony Arbuthnot.

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Employee or Self-Employed – Mutuality of Obligation

When deciding whether a worker is an employee or a self-employed person, it is necessary to examine the exact nature of the working relationship. Two important factors in deciding whether an arrangement is a contract of service or a contract for the services of a self-employed person are whether there is ‘mutuality of obligation’ – i.e. whether the work provider is obliged to provide work and whether there is a corresponding obligation on the worker to accept and carry out the work – and whether the work provider has the right to exercise a sufficient degree of control over the worker to make the relationship one of ‘master and servant’.

In the case of Parade Park Hotel v HM Revenue & Customs (HMRC), HMRC were of the view that Paul May was an employee of the proprietors of the hotel and claimed income tax and NI contributions for the period in question. The hotel and Mr May appealed against this decision to the Special Commissioner of Taxes.

Mr May first worked at the Parade Park Hotel when he was one of three self-employed painters and decorators hired by a building firm to work on an extension. Before the work was finished, the building firm closed down and Mr May and another man were asked to stay on until the work was complete. Mr May was subsequently offered further decorating work at the hotel and general maintenance work. At first he quoted a price for the completion of each task but was later paid at an agreed daily rate. There was no written contract governing the arrangements however. At first Mr May worked for five days a week, but later this became three days and sometimes there was no work. During this time he did work for other clients.

Mr May provided his own tools and clothes, chose which jobs he wanted to do and could decide which days he would work. The proprietor could not make him do jobs that he did not wish to do. At first Mr May was reliable but as time went on his choice of hours and whether or not he turned up when he said he would were often influenced by his acknowledged problem with alcohol.

HMRC argued that there was the necessary mutuality of obligation between Mr May and the hotel for a contract of service to exist. He did not have the right to substitute anyone else to do the work and in reality there was an expectation that work would be given to him as evidenced by the length of time he had worked there and the regularity of the payments made to him. Furthermore, the issue was not whether mutuality of obligation existed from one job to the next but whether it existed during each individual contract. In HMRC’s view, to argue that there was no mutuality of obligation if the work provider was not obliged to offer future work and the worker was not obliged to accept it was ‘tantamount to saying that a short-term engagement could not be a contract of service’. HMRC also argued that the proprietor of the hotel did exercise control over Mr May’s work, dictating what he did, how he did it and when and where he did it.

The Special Commissioner rejected this argument. The regular pattern of payments made to Mr May did not in itself amount to evidence that he was an employee. Whilst there can be mutuality of obligation in respect of separate engagements, this was no greater in respect of each separate day on which Mr May actually worked than it was over the whole period of the working relationship. In these somewhat unusual circumstances, Mr May was not under an obligation to carry out work for the hotel but he could choose to do so. The hotel was not under an obligation to offer him work but could choose to do so. As regards control over his work, the proprietor had to accept Mr May’s refusal to do particular tasks and had no right of control over the way in which he did his work. There was therefore insufficient control for the engagement between the two parties to constitute a contract of service.

Contact Antony Arbuthnot for advice on any matter relating to contracts of employment.

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Expired Disciplinary Warnings

A further case has illustrated that employers cannot place reliance on a disciplinary warning that has expired, either in disciplinary proceedings or to justify dismissal. In Airbus UK Ltd. v Webb, the Employment Appeal Tribunal (EAT) has ruled that a Tribunal is ‘obliged, and not merely entitled, to ignore expired warnings’.

Mr Webb worked for Airbus as an aircraft fitter. In July 2004 he was dismissed for gross misconduct after he was found washing his car when he should have been working. He appealed against the decision to dismiss him and the disciplinary action was reduced to the lesser sanction of a final written warning which would remain on his record for 12 months.

Three weeks after the written warning expired, Mr Webb and four other employees were caught in the locker area, watching television, outside their normal break time. All five were found guilty of gross misconduct. Mr Webb was dismissed but the other four employees received final warnings because they had no prior disciplinary record.

Mr Webb claimed that he had been unfairly dismissed. The Employment Tribunal (ET) took into account the decision of the Scottish Court of Session in Diosynth Ltd. v Thomson in which the Court had ruled that the employee was entitled to assume that a similar warning meant what it said and that it would cease to have any effect after one year. The ET held that as Mr Webb would not have been dismissed had he not been given a previous warning, it followed that his dismissal was unfair.

Airbus appealed against the ET’s decision and lost. However, the EAT confessed to having some difficulty in deciding whether or not the ET is obliged to ignore past warnings that have expired, but judged on balance that it is. The EAT went on to suggest that although the ACAS Code of Practice on Disciplinary and Grievance Procedures suggests that final warnings should normally expire after 12 months, this need not always be the case. A longer time limit might be appropriate if the nature of the misconduct justifies it.

It is important to ensure that the time limits for disciplinary warnings fit the particular circumstances and that your policies and procedures allow you to issue an extended warning where this is deemed necessary. Contact Antony Arbuthnot for advice.

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Overworked Driver Wins Damages from Employer

A kitchen fitter, who was paralysed in an accident on the M1 after he lost control of the van he was driving, has been awarded substantial damages against his employer.

Michael Eyres was employed by a Bradford based company, Atkinsons Kitchens and Bedrooms Ltd. He was often required to work long hours. 

On the day of the accident, Mr Eyres arrived at the factory at 3.30 am. At 4 am he and managing director Craig Atkinson set off to fit a kitchen in Wiltshire. Mr Atkinson drove but Mr Eyres did not sleep during the journey. The two men then proceeded to Devon to complete another job. It was 7 pm before they commenced the drive back to Bradford. Mr Eyres was content to drive even though he had not had any sleep all day and told Mr Atkinson that he was ‘knackered’.

On the journey home, Mr Eyres had conversations on his mobile phone and also made and received several text messages, although there was no clear evidence of such activity in the 20 minutes or so prior to the accident at 10.15 pm. There was, however, evidence that he had been driving at an average speed of 83.5 mph.

Mr Eyres had been awake continuously for around 19 hours when the accident happened. He braked suddenly and lost control of the van, which rolled twice before coming to a halt on the central reservation. He was not wearing a seatbelt and was thrown out of the vehicle and broke his back. 

A witness saw no obvious signs from his driving that he had actually fallen asleep although expert evidence suggested that his lack of rest could have induced a momentary episode of ‘micro sleep’. Mr Eyres claimed to have no clear memory of events leading up to the accident.

Mr Eyres claimed that his employer was liable in negligence and/or for statutory breach of duty because it permitted him to drive after working excessively long hours without a proper break.

The issue before the High Court was whether the accident was caused by tiredness and falling asleep or by use of the mobile phone. The judge concluded that mobile phone use was the more probable explanation. The Court of Appeal overturned this decision however, finding that Mr Eyres had shown, on a balance of probabilities, that tiredness was the cause of the accident.

The damages awarded were reduced by a third on account of contributory negligence because Mr Eyres was not wearing his seatbelt at the time of the accident and must have realised that he was at risk of falling asleep.

Employers who insist on employees working long hours without a break may well put them at increased risk and could find themselves held liable for any resulting stress or injury. In addition, it is now an offence to cause or permit a driver to use a hand-held phone while driving so their use whilst driving on company business should be banned and any breach of this rule made a disciplinary offence. 

If you would like advice on how health and safety law affects your business, please contact Antony Arbuthnot.

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The information contained in this newsletter is intended for general guidance only. It provides useful information in a concise form and is not a substitute for obtaining professional advice.