Credit Management March 2020

HR MATTERS
WRITER’S BLOCK
Work-related blogging, employee checking,
and the right to holidaying abroad
AUTHOR – Gareth Edwards
THE European Court of
Human Rights (ECHR) has
confirmed that an employer
violated an employee’s right
to freedom of expression
when dismissing him for
publishing personal blog posts in relation
to his work.
Mr Herbai, a Hungarian bank employee,
published blog posts on his personal
HR management website. The website
described him as an HR management
expert at a large bank. However, it did
not mention the bank’s name. The bank
dismissed Herbai as it considered that
in posting he had damaged its economic
interests and breached its confidentiality
standards. Herbai argued that his dismissal
breached his freedom of expression rights
under Article 10.
The ECHR balanced the employee's
rights to freedom of expression against
the bank’s rights to protect its business
interests and identified four key elements
for assessment:
- nature of the speech, that freedom of
speech protects comments on a public
matter and also comments made to a
specific group;
- motives of the author, that there was
no question of personal grievance or
antagonism behind the blog posts;
- damage caused to the employer, that none
was highlighted;
- and the severity of the sanction imposed,
that Herbai had been dismissed without a
lesser sanction being considered.
The ECHR found that the employer
did not demonstrate a justification for
restricting Herbai’s right to freedom of
expression and therefore had violated his
rights under Article 10.
This case is a reminder that the right to
freedom of expression is a relevant factor
when considering the legality of any action
taken against an employee. In essence,
restricting an employee’s right to freedom
of expression must be necessary and
proportionate; employers should ensure
they have sufficient evidence to justify
their actions.
CHECKING OUT
Badara v Pulse Healthcare Limited has
shown that employers cannot rely on the
Home Office’s Employer Checking Service
(ECS) right to work check when making
decisions about an employee's immigration
status.
Pulse Healthcare mistakenly believed
that Mr Badara’s right to work in the UK
expired on the expiry of his residence card
issued to him as the family member of an
EEA national. Under EU law, however, it
continues automatically.
The employer submitted ECS requests
for confirmation of Badara’s right to work
in the UK, but the responses came back
as negative. The employer relied on those
responses in maintaining its decision to
stop giving Badara work and pay.
The employer had a clause in its contract
which stated that employees had to produce
evidence of their eligibility to work in the
UK. The Employment Appeal Tribunal
stated that relying on this clause could
amount to an unauthorised deduction
from wages and indirect discrimination
and remitted those claims to the tribunal
for reconsideration.
Badara was a self-employed contractor
who was subsequently found by the
tribunal to have been an employee. If he
had been engaged as an employee from the
outset, the employer may have been able
to dismiss him for ‘some other substantial
reason’ if he had failed to cooperate with
their reasonable requests to establish his
right to work. However, they would need
to have acted reasonably during such
a process, which might include being
prepared to accept alternative evidence of
his immigration status.
Employers should conduct their
own investigations into an employee’s
immigration status. This should occur
even if the documentation produced is not
sufficient to provide them with a ‘statutory
excuse’ under the prevention of illegal
working legislation.
ANNUAL LEAVE
Following TSN v Hyvinvointialan employers
are not required to allow an employee to
carry over all of their annual leave if they
have been unable to take it due to sickness
absence.
In the case, the European Court of
Justice said that, where an employee has
been off sick and unable to take their
holiday, employers are only required
to allow employees to carry over the
minimum holiday entitlement under the
Working Time Directive. This minimum
holiday requirement is currently four
weeks per year.
UK law provides a more generous
minimum annual leave allowance of 5.6
weeks (28 days including bank holidays).
The judgment confirms that EU nations are
able to apply their own laws to annual leave
granted beyond the minimum required by
the Working Time Directive, which is 1.6
weeks for the UK.
Therefore, unless there is a contractual
arrangement that states otherwise, there
is no right for employees to carry over any
more than four weeks of statutory holiday.
This is not a change in the domestic
position, as the same decision was reached
in the UK Employment Appeal Tribunal in
the 2012 case Sood Enterprises Ltd v Healy.
Gareth Edwards is a partner in the
employment team at
VWV. gedwards@vwv.co.uk
Advancing the credit profession / www.cicm.com / March 2020 / PAGE 68