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You've Got That Injured Feeling

7th September 2017

By Sophie Banks, Solicitor in Employment

You may recall our article last month about the consultation published by the Presidents of the Employment Tribunals on 20 July 2017, to uprate the Vento bands for injury to feelings and psychiatric injury.

The consultation closed on 25 August 2017 and a “very large” majority of responses supported the proposed uprating of the bands and the methodology for doing so. The Presidents of the Employment Tribunal released a joint response to the consultation on 4 September 2017, concluding that the new bands issued in Presidential Guidance on 5 September 2017 would be increased as follows:

  • Lower band: £800 to £8,400 (less serious cases);
  • Middle band: £8,400 to £25,200 (cases that did not merit an award in the upper band);
  • Upper band: £25,200 to £42,000 (the most serious cases); and
  • Exceptional cases: over £42,000

The Presidents rejected a call for the inclusion of guidance on factors that take a case from one band to another. Instead, the Presidents’ conclusion sought to remind Judges and Tribunal users that “…the Employment Tribunal retains its discretion as to which band applies and where the band for the appropriate awards should fall.”

The new bands will take effect from 11 September 2017 and will be reviewed in March 2018 (and thereafter annually). Therefore clients with existing or potential Tribunal matters will need to amend any compensation estimates accordingly.

On an entirely different matter, you may have also seen this week the ECHR ruling that a Romanian man should not have been fired for sending private messages at work (Barbulescu v Romania) overturning its own 2016 decision. In this case, the employer had used surveillance software to monitor Mr Barbulescu’s computer activity, and some of the communications sent by him to his brother and fiancée were “intimate in nature.” He was subsequently dismissed. The ECHR found that Mr Barbulescu’s right to privacy had not been “adequately protected” as it was unclear whether he had been warned his communications would be monitored, nor could it be established specifically why the monitoring took place. However, he was awarded no compensation.

Whilst on the face of it, this case could have significant implications for employers, it is unlikely to have a huge impact as the UK has strict rules regarding what can be monitored at work, by whom and why. So, provided an employer already adheres to the guidelines given in Lawful Business Practice Regulations and Part 3 of the Information Commissioner’s Employment Practices Code (dealing with monitoring at work), they will not need to amend any policies or procedures in light of this decision.

The contents of this update are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this update. © Mundays LLP 2017.

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