The Christmas break will undoubtedly be a welcome relief for Principals and staff alike across the country after an extremely hectic term. Many Colleges have undergone significant restructures over the last few months as well as starting or continuing complex estate strategy programmes.

As a welcome respite for Colleges, we report on two issues that may affect Colleges with cases with which they may deal in the coming months.

The public sector generally has a bad record for the number of sickness absences of its staff, which statistically is higher than the private sector. FE is without exception to this. Often, HR Directors and Senior Managers suspect that some individuals may be swinging the lead although they have no concrete proof to show that this is the case. On a more extreme level, individuals may be off on sickness absence but have alternative employment elsewhere which, if a member of staff is also in receipt of statutory sick pay, may also be deemed as fraud on the Revenue. A recent Employment Appeal Tribunal has provided some support for employers who monitor their employees covertly in situations of this nature. Whilst the case is not directed as such to employees on sickness absence, its principles can be transferred to scenarios of this nature.

In City and County of Swansea v Gayle [2013] IRLR 768, the Employment Appeal Tribunal has held that the covert monitoring of an employee did not breach that employee's right to privacy under Article 8 of the European Convention on Human Rights, which may otherwise have rendered Mr Gayle's dismissal unfair. Mr Gayle had been spotted playing squash at a time when he should have been at work. A PI monitored Mr Gayle and, following a disciplinary hearing, Mr Gayle was dismissed for gross misconduct. The original Employment Tribunal held that Mr Gayle had been unfairly dismissed and that monitoring Mr Gayle without his knowledge expressly breached the European Convention in relation to privacy. However, the Employment Appeal Tribunal overturned this decision on a number of grounds. First, the video footage in relation to Mr Gayle was outside the sports centre where he had been at the time he should have been working. Secondly, Mr Gayle was filmed during normal working hours when there was a reasonable expectation the Council was entitled to know where he was at the time. Finally, Mr Gayle was fraudulently engaged in his own activities whilst being in paid employment with the Council.

Whilst a helpful decision, Colleges should treat all covert monitoring with a certain amount of caution. To render a dismissal fair on conduct grounds there needs to be an honest and genuine belief based on a reasonable investigation that an act of misconduct had occurred. In this situation, the monitoring of the employee took place in a public place, that is, in front of where everyone else could have seen the employee. Had it occurred somewhere differently (such as at the employee's home) or indeed outside the employee's normal working hours a different conclusion could have been reached. Nevertheless, the decision is a welcome one not least because increasingly employees are using the European Convention on Human Rights to devise complex and robust arguments challenging the validity of decisions employers take. This often augments an employee's argument to ensure that Colleges consider settlement of such claims.

STOP PRESS: The second piece of news follows on from last month's article in relation to zero hours contracts. The Government has started a 12 week consultation process on the use of these types of contracts. Very often, it is perceived that individuals are abused by using this type of contractual arrangement as it does not guarantee any specific guarantee of work for them. Employers, however, see the contract as providing a great amount of flexibility. A large number of FE Colleges use zero hours contracts and curtailing their use may be bad news all round. The consultation period has commenced and it is likely that a decision regarding their use will not be for some time. However, initial indications appear to suggest that the use of an exclusivity clause, that is, preventing a worker from taking up alternative work elsewhere if they have a zero hours contract with a College, may be rendered unfair. This is to ensure the maximum amount of flexibility from the College's perspective. We will continue to monitor the progression of this in the coming months.

Matt Kelly is a partner at Thomas Eggar, the law firm


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