EMPLOYMENT LAW MAY/JUNE 2020
Employment law SOS
This month, our legal expert explores what to do when an
employee joins a climate protest against his own company,
monitoring home working and maintaining union relations
BY CATHERINE WILSON, PARTNER, KEEBLES LLP www.keebles.com
We’re a large steel mill,
and are often the focus
of climate protests. Over the
years, we’ve become adept at
moving them along without
too much fuss. However, one
of our members of staff has
recently started joining the
protest on his days off and
has been pictured holding
placards with slogans against
the company. He’s a valued
and long-standing member of
staff , which makes his recent
actions more surprising. What
does the law say about people
directly protesting against
their employers?
The general advice to both
employers and employees is to
leave political and other beliefs
outside the workplace and
normally, like many other out of
workplace activities, this type
of activity should not normally
impact upon the workplace.
Even assuming he does not
identify as himself as being
employed by you whilst he is
joining the protest on his days
off it is clear why you may be
concerned by his behaviour and
this may be a rare exception to
the general advice.
Political or philosophical
diff erences have typically been
managed informally between
employer and employee.
Attempts to discourage your
employee from participating
in protests of this type may
however be perceived by your
employee as interference with
his free speech and it is easy to
see how things can escalate.
Unfortunately, the law in this
area remains extremely unclear.
His behaviour must be viewed
against the background of the
Equality Act 2010. This sets out
several protected characteristics,
which currently do not include
political beliefs.
Protection on grounds on
grounds of political belief has
become inter-meshed with
the protected characteristic
of religion or philosophical
belief. Belief in veganism and
Scottish independence have
both been held to amount to a
philosophical belief for these
purposes, so it is easy to see
why this case could also be
interpreted in the same way.
So what options are
available? You could consider
the introduction of internal
rules designed to discourage
employees from engaging
in political debate. Careful
monitoring and informal
discussion however seem
There is no specifi c data privacy
law in the UK which governs
monitoring of employees in this
situation. Instead, as the various
methods of monitoring have
developed over recent years, so
has the regulatory framework
governing their use.
I think the starting point
to any answer to this question
is to consider what you would
do if the staff were working
normally in the offi ce. Would
you habitually listen into their
conversations during work time
on the telephone or in the wider
offi ce? If the answer is no, then
query why the board feels the
need to monitor in to these
conversations now?
Similarly, do you have any
policy or guidance to staff as to
what type of monitoring takes
place and what degree of privacy
can they reasonably expect
whilst at work? A distinction may
be drawn between conversations
with customers, which may be
recorded for future reference
or compliance purposes, and
everyday personal interactions
between colleagues.
In the absence of a specifi c
policy, if we assume that the
‘staying in touch’ conversations
are not directly work-related
then I think there is a strong
argument that the conversations
on Teams are private chats
between the individual parties.
The mutual duty of trust and
confi dence which is implied
into an employee’s contract of
employment is relevant. In the
absence of prior agreement, an
employer’s monitoring activities
may constitute a breach of this
duty and could give an employee
a claim for unfair constructive
dismissal. Targeted monitoring
could also give rise to claims for
unlawful discrimination.
sensible and, if appropriate,
clear guidance to employees
as to what level of political
debate is or is not acceptable.
If the employee feels they have
been subjected to detrimental
treatment, then there must be
a real risk of a claim, so great
sensitivity is required.
During lockdown, many
of our staff have been
working from home and using
Microsoft Teams to stay in
touch. We’re trusting them to
get on with their jobs as well as
possible and, for the most part,
they seem to be. However, the
board are insistent that we
monitor staff activity. Legally,
can we make employees share
their Teams conversations?
14 www.manufacturingmanagement.co.uk
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