Rogers & Norton News

Employment Law Bulletin May 2016 Part 2

Monday, May 9, 2016

Restrictive Covenants Judged as at ‘Day One’

Bartholomews Agri Food v Thornton

Do you keep employees’ restrictive covenants under review? As business needs and other circumstances change, you could find that covenants become unenforceable.

But in Bartholomews Agri Food v Thornton, the High Court held that a restrictive covenant that wasn’t enforceable to begin with didn’t become enforceable when the employee was promoted to a role that would justify a restriction along those lines. In other words, enforceability is judged as at the time the contract is signed.

For Mr Thornton, that time was at an early stage in his career when he was a trainee agronomist. In his contract was a clause that read:

‘Employees shall not, for a period of six months immediately following the termination of their employment be engaged on work, supplying goods or services of a similar nature which compete with the Company to the Company’s customers, with a trade competitor within the Company’s trading area, (which is West and East Sussex, Kent, Hampshire, Wiltshire and Dorset) or on their own account without prior approval from the Company. In this unlikely event, the employee’s full benefits will be paid during this period.”

An inappropriate restriction to place on a trainee agronomist and unenforceable, said the High Court. And even though, by the time Bartholomews wanted to rely on the clause, Mr Thornton was a full-fledged agronomist, that didn’t convert the clause into a reasonable, enforceable one. Aside from the fact that the clause was still too widely drafted to work, it was unenforceable at the beginning and it remained unenforceable, regardless of Mr Thornton’s promotion.

A stark warning, then, that not only do you need to get your covenants right to begin with, but you should review them periodically and as employees rise through the ranks.

‘Private’ Emails and Human Rights

Garamukanwa v Solent NHS Trust

Mr Garamukanwa was employed by the Trust as a clinical manager. After his relationship with staff nurse Ms Maclean ended, he suspected that she had become involved with a female colleague. And that’s when anonymous action against the two women began, involving a false Facebook account and malicious emails sent to management.

Ms Maclean felt that Mr Garamukanwa was stalking and harassing her. There was a police investigation, but no charges brought. Evidence from that investigation – which included photographs on Mr Garamukanwa’s phone connecting him to the malicious emails – was handed over to the Trust and used in subsequent disciplinary proceedings. Mr Garamukanwa was dismissed for gross misconduct.

He went on to lose his claims for unfair dismissal, unlawful race discrimination, victimisation, harassment and wrongful dismissal. But the key question for the Employment Appeal Tribunal (EAT) was whether the NHS Trust had, by looking at ‘private’ material that Mr Garamukanwa had sent to Ms Maclean and photos held on his phone, infringed his human rights. He claimed interference with Article 8 – the right to respect for private and family life, home and correspondence. The tribunal, he said, had not distinguished between public material (the anonymous emails sent to his employer) and private material (such as emails to Ms Maclean about his feelings and their relationship). He claimed that he had a reasonable expectation that the latter would remain private.

No, said the EAT. There was no reasonable expectation of privacy and therefore Article 8 didn’t apply. Mr Garamukanwa’s behaviour had effectively turned material about a personal relationship into a workplace issue. There was no need to draw a distinction between what he claimed was ‘public’ and ‘private’. The police hadn’t done so, and had allowed the Trust to use all of the material without distinction.

Also relevant was: •that not only did Mr Garamukanwa not object to the evidence being used in the investigation and disciplinary, he volunteered additional material. This negated the suggestion that he had any expectation of privacy in any of the material;

  • that once Ms Maclean had complained about feeling harassed, there must have been an expectation that she would complain about any further correspondence (even if those emails were sent to her private address and were about their previous relationship). Mr Garamukanwa couldn’t expect to be able to control what she did with emails she received;
  • that the content of emails sent to Ms Maclean strayed beyond the purely personal; they touched on workplace issues too.

A fact-specific case, but one that illustrates very well some difficult issues that employers face from time to time.

Consultation on Pay

One month on from the introduction of the National Living Wage (NLW), views are being sought on where the National Minimum Wage rates (including the NLW) should be set from April 2017.

One area of interest to the Low Pay Commission is how the NLW’s introductory rate of £7.20 is affecting workers, employers, the labour market and the economy; how  businesses are adjusting to this, and how it’s impacting pay, terms and conditions, income, hours, employment and competitiveness.

The consultation is open for responses until 29th July 2016.

And if you need any help with minimum wage calculations, the Department for Business, Innovation & Skills has just published an updated guide.

And Finally…

A Weighty Issue

An Employment Judge has been in the news for his view that overweight workers should be better protected by the law.

 Being fat isn’t, by itself, a protected characteristic under equality laws. There may be a related disability issue, in which case the worker has the right to not be discriminated against. But there is not anything hard and fast in discrimination law that protects larger people from losing out during the recruitment process, or from being paid less than their colleagues (for example).

It will be interesting to see where this ends up. Perhaps the point for employers to focus on for now is that less favourable treatment of any worker based on assumption or prejudice is a bad thing. The fact that the law recognises some characteristics and not others is significant, but that shouldn’t be the only consideration when you’re making a decision about a job applicant or a member of staff.