Take it or leave it …

Photo by Liviu Florescu on Unsplash

Take it or leave what?

This is the stark choice faced by thousands of Asda employees (US parent company Walmart) in the UK who have been told by their employer that they must accept new contracts of employment.

The GMB Trade Union representing many of the affected employees has publicly stated its opposition to the new contracts. The Union’s argument amounts to the claim that the new terms and conditions will leave employees in a worse position.

Asda has stated that if employees don’t agree to the new contracts of employment by 2 November 2019, they will no longer have a job with the company. Effectively, the employees will be terminating their employment with the company Asda is arguing.

What’s the legal position?

Well, Asda is stating that it wishes to terminate the existing contractual agreement with the affected employees and replace it with a new contract. In this type of situation, Section 86 of the Employment Rights Act 1996 is particularly relevant.

The Act lays down statutory minimum periods of notice that the employer must give to the employees in question. These statutory minimum periods of notice apply to all those employees who have been continuously employed for four weeks or more.

Given the amount of previous Blogs of mine where I have covered the issue of an individual’s employment status, I really shouldn’t have to remind readers that the statutory notice periods apply to employees only i.e. those individuals who work under a contract of service (as per Section 230 of the Employment Rights Act 1996).

The statutory periods are detailed below:

  • One week’s notice is required to be given to those individuals who have been employed for more than four weeks but under two years
  • If the employee has between two and 12 years’ continuous service, s/he is entitled to a week’s notice for every year of service
  • If an employee has more than 12 years’ continuous employment, the maximum notice period is 12 weeks

It is important to note that these are statutory minimum periods of notice and that contracts of employment may actually lay down a requirement for longer periods of notice.

Alternatively, some employers may choose to insert a term in the contract where they can pay off the employee immediately by giving them their full entitlement to notice pay. There is no need for the employee to work whatever notice period they are entitled to receive. This type of contractual term is known as payment in lieu of notice.

Back to Asda: the affected employees are being given their statutory notice period whether that’s 1 week, 2 weeks or up to the maximum notice period of 12 weeks (depending on the individual’s length of service) as per Section 86 of the Employment Rights Act 1996.

What if some people still refuse to sign the new contracts after their statutory period of notice has expired?

There is always the possibility that certain employees (with the requisite length of service or meeting other relevant criteria e.g. protected characteristic discrimination) may be able to raise a claim for unfair dismissal in terms of the Employment Rights Act 1996.

Asda, on the other hand, may be able to justify the dismissals as potentially fair under Section 98(2) of the Employment Rights Act 1996 i.e. for some other substantial reason (the necessity for a wide-scale reorganisation in a tough retail environment).

No doubt lawyers for both Asda and the GMB are already staking out their respective legal positions for a possible battle before the Employment Tribunal.

A link to the story on the Sky News website can be found below:

Asda refuses to remove sack threat for thousands of staff over compulsory contracts http://news.sky.com/story/asda-refuses-to-remove-sack-threat-for-thousands-of-staff-over-compulsory-contracts-11845215

Postscript

It has since been reported in the Daily Mirror newspaper that one of Asda’s longer serving employees who was sacked for refusing to accept the new contract is intending to lodge an Employment Tribunal claim.

Please see the link below to this story:

https://www.mirror.co.uk/money/asda-worker-sue-supermarket-after-20857926

The Guardian also reported that the negative publicity from this story could be costly for Asda – see the link below:

https://www.theguardian.com/business/2019/nov/10/asda-faces-backlash-enforces-new-contracts

Copyright Seán J Crossan, 26 October and 12 November 2019

A hard day’s night …

Photo by Xi Wang on Unsplash

What has European Union law done for workers in the UK?

This was a question that I found myself asking when reading about very poor working conditions and lengthy hours experienced by many Chinese teenagers working in factories in order to manufacture a product purchased and used by many Western consumers.

The answer to my question is quite a lot actually when you consider the impact of the EU Working Time Directive which was transposed into UK employment law as a result of the Working Time Regulations 1998.

The Working Time Regulations 1998 guarantees most workers (there are exceptions – aren’t there always?) the right not to be forced to work more than 48 hours per week.

It’s important to note that the category of worker has a broader meaning and is not merely confined to those people who are employees (i.e. have a contract of service as per Section 230 of the Employment Rights Act 1996). Many individuals who work under a contract for services will benefit from the protection of the Directive and the Regulations.

The Regulations also compel the employer to give workers regular breaks and they also regulate the amount of hours that the worker can be forced to work in any one day.

There is special protection for younger workers regarding breaks and the maximum daily hours that they are permitted to work.

The basic rights and protections that the Regulations provide are:

  • a limit of an average of 48 hours a week which a worker can be required to work (though workers can choose to work more if they wish by signing an opt-out) (Regulation 4)
  • a limit of an average of 8 hours work in each 24 hour period which night workers can be required to work (Regulation 6)
  • a right for night workers to receive free health assessments (Regulation 7)
  • a right to 11 hours rest a day (Regulation 10)
  • a right to a day off each week (Regulation 11)
  • a right to an in-work rest break if the working day is longer than 6 hours (Regulation 12)
  • a right to 5.6 weeks (or 28 days) paid leave per year

Admittedly, many UK and EU employers will have better working conditions than the list above, but in theory the Working Time Directive provides a basic safety net or floor of rights for workers.

It is normal practice, for many employers to have a collective or work-place agreement which governs the length of in-work rest breaks if the working day is longer than six hours.

If there is no such agreement, adult workers are entitled to a 20 minute uninterrupted break which should be spent away from the work-station and such a break should not be scheduled at the end of a shift.

Younger workers are entitled to a longer, uninterrupted break of 30 minutes if their working day is longer than four and a half hours and, similarly, this break should be spent away from a person’s workstation.

What a contrast then from conditions in Chinese factories. Although China may be on course to become the World’s largest economy, the human cost of achieving this goal is very high.

No one, of course, is saying that the situation in the UK and the EU is approaching utopia for workers. The Regulations (and ultimately the Directive) can and will be ignored by rogue employers. Furthermore, in work-places where trade unions are weak or non-existent, workers may not be aware of their rights or willing to enforce them.

Despite all this, at least UK and EU workers have some sort of legal means for challenging poor working conditions and the culture of lengthy hours.

One of the big fears about the consequences of Brexit has, of course, been the possible erosion of employment protection standards by a future UK Government and Parliament that might be committed to a more free market economic philosophy of labour relations.

A link to the story about working conditions in China can be found below:

Amazon Echo devices made by Chinese teens ‘working through night’ – reports

Copyright Seán J Crossan, 23 October 2019

Good work?

Photo by Maarten van den Heuvel on Unsplash

One of the consistent themes of my blog has concerned an individual’s employment status in the work-place – or the very real difficulties associated with the lack of such status.

Section 230(1) of the Employment Rights Act 1996 defines who is an “employee” in the following terms:

“… an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.”

As I have stated on more than one occasion, those who have a contract of service rather than a contract for services tend to be in a much stronger position legally speaking when it comes to a range of employment rights such as:

  • Paternity and maternity pay/leave
  • Statutory adoption pay/leave
  • Consultation rights in redundancy and TUPE situations
  • Entitlement to redundancy payments
  • Entitlement to sick pay
  • Minimum notice periods
  • Protection against unfair dismissal

The above are just some of the rights that people with employment status potentially can acquire depending on their length (or continuity) of service with their employer.

Those individuals with more insecure working patterns (e.g zero hours and/or casual workers) will almost never be in a situation to acquire such rights because it is almost always impossible for them to build up the necessary period of continuous service with the organisations to which they provide services. Typically, many of these workers are part of what has become known as the “gig economy” where the feature of employment contracts known as mutuality of obligation is absent.

Admittedly, the UK Government has attempted to begin to address the disadvantages facing “gig economy” workers by setting up the Taylor Review (which published its findings in July 2017). The final report made 53 recommendations concerning modern, employment practices:

https://www.gov.uk/government/publications/good-work-the-taylor-review-of-modern-working-practices

The UK Government’s official response to the Taylor Review was entitled “Good Work” and a link to this document can be found below:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/679767/180206_BEIS_Good_Work_Report__Accessible_A4_.pdf

The desire to extend workers’ rights seems to be something of a trend as, in April 2019, the European Union also ratified a new Directive with the working title Transparent and predictable working conditions in the European Union. This Directive (for the remaining EU 27 member states) will certainly give casual workers greater legal rights, but given the current uncertainty over the UK’s Brexit position, it remains to be seen if this measure will ever be implemented in this country (for more information, see my blog entitled “The gig economy” which was published on 19 April 2019).

One of the most significant new rights that the UK Government is proposing to extend to non-employees is the right to sick pay from day 1 of their service. It is calculated that this reform (if implemented) will benefit some 2 million workers.

A link to how the story was reported by The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.160719/data/9005291/index.html

Although employment law is a matter reserved to the Westminster Parliament, the Scottish Government has established its own Fair Work Convention with the express aim:

“… that, by 2025, people in Scotland will have a world-leading working life where fair work drives success, wellbeing and prosperity for individuals, businesses, organisations and society.”

A link to the Convention’s website can be found below:

https://www.fairworkconvention.scot

Copyright Seán J Crossan, 22 July 2019

Sickness absence

Photo by Ali Yahya on Unsplash

An issue which many employers will have to deal with is that of long-term sickness and/or frequent absences of certain employees.

In terms of Section 98(2) of the Employment Rights Act 1996, it is open to employers to argue that a dismissal was fair when they terminated the employment relationship by reason of an individual’s sickness absences. The employer would justify such a dismissal on grounds of capability (meaning “in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality”).

This is subject, however, to the requirements laid down in Section 98(4) of the Act as to whether the employer has acted reasonably or unreasonably and also having regard to the “equity and substantial merits of the case”.

I also stress to students and to members of the wider public, that an employer does not have a blank cheque (or an automatic right) to dismiss an employee on the basis of sickness absences. Many employers will rightly argue that they have a business to run and they must monitor sickness absence amongst employees.

A particularly problematic issue is the use by many employers of sickness absence trigger points. This is where employers designate a set number of days (usually within a 12 month period) and affected employees may find themselves being summoned to a meeting which, in reality, is a thinly disguised disciplinary action which could ultimately lead to dismissal on capability grounds.

The problem here for employers is that the use of such trigger points can be entirely arbitrary in nature. In other words, they are blunt instrument which take little or no account of individual personal circumstances.

What if the employee in question has a disability in terms of Section 6 of the Equality Act 2010? In such cases, employers would be well advised to tread extremely carefully when dealing with members of the workforce who have (or might have) the protected characteristic of disability. Additionally, a female employee who is pregnant (and is suffering from short term ill health e.g. morning sickness) may fall foul of the trigger point. Again, caution should be exercised here because a pregnant employee will be entitled to the protection of Section 18 of the Equality Act 2010.

Let’s also discuss employees who are undergoing gender reassignment and, as this involves a prolonged medical process, it may be the case that this will involve a significant amount of absences from work for the person undergoing this process.  Section 16 of the Equality Act 2010 makes it very clear that an employer who treats such an individual less favourably by, perhaps, subjecting them to disciplinary action on account of these absences will be acting unlawfully.Let’s also discuss employees who are undergoing gender reassignment.

Indirect discrimination

When applying policies (practices or criteria) to the workforce, employers will have to be very much aware of straying into the perilous territory of the prohibited conduct known as indirect discrimination (Section 19: Equality Act 2010).

The Equality and Human Rights Commission provides guidance on what constitutes indirect discrimination in its Statutory Code of Practice on Employment:

Example 1

An employer has a ‘no headwear’ policy for its staff. Unless this policy can be objectively justified, this will be indirect discrimination against Sikh men who wear the turban, Muslim women who wear a headscarf and observant Jewish men who wear a skullcap as manifestations of their religion.

Example 2

Requiring a UK-based qualification, when equivalent qualifications obtained abroad would also meet the requirement for that particular level of knowledge or skill, may lead to indirect discrimination because of race, if the requirement cannot be objectively justified.

The concept of indirect discrimination in Section 19 of the Equality Act applies to all of the protected characteristics with the exception of pregnancy and maternity (which are specifically addressed elsewhere in the Act (Sections 17 and 18)).

A gung ho or insensitive approach by the employer may be very costly in the longer term as regards dealing with sickness absences (especially as an injury to feelings element could be part of an Employment Tribunal award).

A disability, for example, will affect not only the individual’s ability to perform her job, but also her ability to perform normal day-to-day activities. If this is the case, the employer will have a duty to make reasonable adjustments, in terms of Section 20 of the Equality Act 2010 to the employee’s working conditions, in order to aid her return to work.

A failure to consider reasonable adjustments or to dismiss out of hand certain adjustments may constitute disability discrimination in terms of the Act.

Furthermore, it may be extremely ill advised for employers to place employees with disabilities on some sort of attendance monitor system. This could be an example of harassment (Section 28: Equality Act) and, if the employee in question was eventually dismissed, it may represent a breach of Section 15 of the Act i.e. discrimination arising from disability.

Section 15 is an area where many employers may be caught out and, consequently, they may treat a disabled person less favourably. The issue often arises when employers monitor attendance and time-keeping of employees. It may be the case that disabled employees face greater difficulty when it comes to maintaining an acceptable level of attendance and time-keeping and are thus placed at a disadvantage in comparison with their non-disabled colleagues.

Typically, employers will impose sanctions on all employees who do not meet attendance and time-keeping targets and they will doubtless argue that the issue disability has nothing to do with the way in which they treated an individual.

An example from the Equality and Human Rights Commission’s Statutory Code on Employment makes it very clear the dangers of such a blanket approach being taken by employers (which could leave them open to legal action under Section 15):

Example

A disabled worker periodically requires a limited amount of time off work to attend medical appointments related to the disability. The employer has an attendance management policy which results in potential warnings and ultimately dismissal if the worker’s absence exceeds 20 days in any 12-month period. A combination of the worker’s time off for disability-related medical appointments and general time off for sickness results in the worker consistently exceeding the 20 day limit by a few days. The worker receives a series of warnings and is eventually dismissed. This is likely to amount to disability discrimination.

Discrimination arising as a consequence of disability

Some of the pitfalls which employers face when dealing with employees who are disabled and who have accumulated a number of sickness absences which may trigger the organisation’s intervention policy was demonstrated in a case from 2018.

DL Insurance Ltd v O’Connor Appeal No. UKEAT/0230/17/LA [2018]

O’Connor, a disabled employee, was disciplined by DL Insurance because she had accumulated 60 days sickness absence during a 12 month period (she had been given a final written warning). Her employer had fallen foul of Section 15 of the Equality Act 2010 because both the Employment Tribunal and the Employment Appeal Tribunal were of the view that disciplinary action to deal with her level of sickness was not a proportionate response given that she was a disabled person within the meaning of the Act. Her employer was aware (and had accepted previously) that O’Connor was a disabled person. Reasonable adjustments (principally flexible arrangements) had been put in place by the employer as per their duty under the Act.

Significantly, the employer had failed to involve an independent occupational health service in the matter before it made the decision to discipline O’Connor AND the manager charged with carrying out disciplinary action had not bothered to obtain a full grasp of the facts of the situation i.e. by going to discuss how what impact the absences were having on O’Connor’s colleagues. In particular, the failure by the employer to involve occupational health services in O’Connor’s case was a breach of the company’s own procedures.

In the employer’s defence, however, the Employment Appeal Tribunal did note that O’Connor had been treated sympathetically in the past and that more latitude had been given to her personally in relation to the number of sickness absences she had accrued. This was not enough and by placing O’Connor under disciplinary sanctions, the employer had subjected her to unlawful. less favourable treatment in that she would not receive contractual sick pay if she was absent from work in the future.

The Employment Appeal Tribunal placed particular emphasis on the fact that the employer had failed to explain how a written warning (with all the implications for O’Connor) would actually lead to an improvement in her attendance at work. It was noted that the employer accepted that O’Connor’s absences were genuine and unavoidable and were caused by her disability.

https://assets.publishing.service.gov.uk/media/5b191137ed915d2cb78ace3a/DL_Insurance_Services_Ltd_v_Mrs_S_O_Connor_UKEAT_0230_17_LA.pdf

Conclusion

Dealing with employee sickness absence (whether of a short or long term nature) can be extremely problematic for employers. The blunt instrument approach where arbitrary trigger points are used to monitor and deal with sickness absence can store up problems for employers over the distance. Quite simply, such policies, criteria or practices (PCPs) may have a disproportionately, adverse effect on certain groups of people within the workforce e.g. individuals with disabilities. There is a very real danger for employees that they end up breaching provisions of the Equality Act 2010 and their argument that a capability dismissal was fair will fall foul on deaf ears at any subsequent Employment Tribunal hearing. Proceed with caution might be the best advice when dealing with employees who have poor sickness records.

Copyright Seán J Crossan, 21 June 2019

More hell on the high street (or redundancy again)

Photo by Becca McHaffie on Unsplash

The difficult trading conditions on the UK high street don’t seem to be easing with news that Debenhams, one of the country’s biggest retailers, will close 50 of its stores. This will affect about 1,200 employees of Debenhams, many of whom will be facing up to the threat of redundancy.

Debenhams have just announced the names of the first 22 stores which will close in 2020.

Debenhams names 22 stores to close

The struggling department store chain plans to close the shops next year, affecting 1,200 staff.

Redundancy

Redundancy can be potentially fair reason for dismissal… if handled correctly by employers.

Only employees can be made redundant. 

Remember: S230(5) Employment Rights 1996 defines who is an “employee”.

The definition of redundancy can be found in Section 139(1) of the Employment Rights Act 1996:

(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to-

(a) the fact that his employer has ceased or intends to cease-

(i) to carry on the business for the purposes of which the employee was employed by him, or

(ii) to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business-

(i) for employees to carry out work of a particular kind, or

(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,

The relevant legal provisions governing redundancy are quite extensive and can be found in:

● Trade Union and Labour Relations (Consolidation) Act 1992 

● Employment Rights Act 1996

● Information and Consultation of Employees Regulations 2004 

● Transfer of Undertakings (Protection of Employment) Regulations 2006

● Collective Redundancies and Transfer of  Undertakings (Protection of Employment) (Amendment) Regulations 2013

The really critical provisions of UK employment law which govern redundancy handling are to be found in the following:

● Sections 188-198 of the Trade Union and Labour Relations (Consolidation) Act 1992 

(Section 188 is further supplemented by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1999).

Handling redundancies

Employees should be selected for redundancy in a fair way.

The employees who are at risk for potential redundancy will be part of a group of individuals known as the redundancy pool.

Employers can manage situation in a number of ways. 

How?

● LIFO

● Volunteers 

● Disciplinary records

● Staff appraisal – skills, experience etc (redundancy matrices or re-applying for your job).

What is LIFO? 

Last in, first out – was the most commonly used method, but it could fall foul be regarded as indirect discrimination e.g. too many young people are made redundant. So there are limitations to this approach.

Redundancy selection criteria must be objective. 

Many employers will have contractual redundancy policies. Must stick with this: see John Anderson v Pringle of Scotland [1998] IRLR 64.

Appeals should be permitted.

Individuals will still be an employee until effective date of redundancy.

Avoiding redundancies

Redundancy could be avoided by:

● Short-time working

● Lay-offs

The employer needs to consult with employees or their representatives.

Both sides may not reach agreement, but consultation has occurred. 

 It has to be a meaningful exercise – not a paper one.  

Additional rights

Employees have additional rights in redundancy situations:

● Consultation with employer

● Notice period

● Suitable, alternative employment 

● Time off to find new employment

Selection for redundancy

Selection for redundancy is automatically unfair in relation to:

● Protected characteristics e.g. age, disability, gender, maternity and pregnancy etc

● Trade Union participation or acting as employee representatives

● Jury service

● Whistle-blowing & health and safety cases

● Asserting statutory rights

● Occupational pension trustees

Statutory redundancy pay

Statutory redundancy pay is most common payment. Only those employees who have 2 years or more continuous service are entitled to claim statutory redundancy pay.

It is worked out according to the following formula:

● half a week’s pay for each full year employees were under 22

● 1 week’s pay for each full year employees were 22 or older, but under 41

● 1 and half week’s pay for each full year employees were 41 or older

Length of service which can be used to calculate the amount of redundancy pay is capped at 20 years and the amount of weekly pay is capped at £525 (the maximum statutory amount claimable is £15,750) from 6 April 2019.

Employers can be more generous with redundancy pay or they can include employees with less than 2 years’ continuous service.

No tax is payable on redundancy pay less than £30,000.

Employees can calculate their entitlement to statutory redundancy pay by clicking on the link below:

https://www.gov.uk/calculate-employee-redundancy-pay

Notice of redundancy

Proper notice of redundancy must be given. Section 86 of the Employment Rights Act 1996 contains the relevant notice periods for termination of the employment contract.

The maximum period of notice for those employees with 12 years or more continuous service is 12 weeks.

Sometimes contractual periods of notice can be longer, but not shorter than the those laid down by the Employment Rights Act 1996.

That said, notice can be shorter if the employment contract permits employer to make a payment in lieu of notice. 

Employees will receive full entitlement to redundancy pay, notice pay, holiday pay & other entitlements.

Collective redundancies?

This situation arise where more than 20 employees are going to be  made redundant in a 90 day period. Fixed term contract employees do not need to be included in collective consultation, except if contract ending early because of redundancy.

The Debenhams’ situation is likely to be classified as a case of collective redundancy.

There must be consultation with with Trade Union or employee representatives.

Consultations must cover:

● ways to avoid redundancies

● the reasons for redundancies

● how to keep the number of dismissals to a minimum

● how to limit the effects for employees involved, e.g. by offering retraining

Length of consultation period?

No time limit for how long this period should be, but the minimum is:

● 20 to 99 redundancies – the consultation must start at least 30 days before any dismissals take effect

● 100 + redundancies – the consultation must start at least 45 days before any dismissals take effect

These minimum periods apply if employers are contemplating making collective redundancies within a 90 day period. 

The UK Coalition Government (2010-15) substantially reduced redundancy consultation periods.

Failure to consult employees?

Dismissals will almost certainly be unfair. 

In a collective redundancy situation, employers should notify the Redundancy Payments Service (RPS) by filling out form HR1. It is a (strict liability) criminal offence not to complete the HR1.

A link to a template HR1 form can be found below:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/782487/NEW_HR1.pdf

Failure to pay redundancy payments or payment of the wrong amount?

Affected employees have 6 months (minus 1 day) to lodge an Employment Tribunal claim.

Insolvent employers?

The State will ultimately pay out from the National Insurance Fund (employee’s should complete and submit an RP1 Form).

Employees can find out if their employer is insolvent by going to the following link:

https://www.gov.uk/get-information-about-a-company

A short film from ACAS about the core employments rights in relation to redundancy can be found below:

Copyright Seán J Crossan, 28 April 2019

Social Media Misuse

Photo by Sara Kurfeß on Unsplash

In a previous Blog (It happened outside work (or it’s my private life!) published on 7 February 2019), I discussed the importance of employers drawing up a clearly defined social media policy to which employees must adhere. It’s of critical importance that employers make employees aware of the existence of such policies and the potential consequences of breach. Generally speaking, employers will be rightly concerned that the misuse of social media platforms by employees may lead to reputational damage.

An interesting example of the type of reputational damage which can be caused to an employer’s brand by malicious or careless or thoughtless social media use was reported by The Independent in November 2018. A company in the Irish Republic was forced to take down a video on its Facebook site where an employee had used racially offensive images to promote Black Friday:

https://edition.independent.co.uk/editions/uk.co.independent.issue.251118/data/8650006/index.html

Misuse of social media can potentially be regarded by employers as misconduct. In really serious cases, the situation might be regarded as gross misconduct – a potentially fair reason for dismissal of the employee in terms of Section 98(4) of the Employment Rights Act 1996.

Right on cue, two stories have appeared about social media misuse on the BBC website this afternoon.

In the first story, Rugby Australia has announced that it intends to dismiss, Israel Folau for making homophobic comments on Twitter. Folau had been warned last year about previous offensive tweets that he had made. Clearly, he hasn’t learned his lesson and Rugby Australia is legitimately concerned about the reputational damage that such remarks may do to its image as an inclusive sports organisation.

A link to the story on the BBC News website can be found below:

Israel Folau: Rugby Australia ‘intends’ to sack full-back after social media post

Rugby Australia says it intends to terminate Israel Folau’s contract following a social media post by the full-back in which he said “hell awaits” gay people.
In the second story, Shila Iqbal, an actress who appears in the long running ITV soap opera, Emmerdale has been dismissed due to offensive tweets that she made some 6 years ago.
A link to the story can be found below:

Shila Iqbal: Emmerdale actress fired over old tweets

Shila Iqbal says she’s “terribly sorry” for using offensive language online six years ago.

Trawling through the case law archives

Since the previous Blog was published, I have been browsing through the archives and discovered a number of Employment Tribunal cases which involved alleged social media misuse.

Weeks v Everything Everywhere Ltd ET/250301/2012

In this case, the dismissed employee posted comments on Facebook which likened his work place to Hell (or Dante’s Inferno for the more cultured readership). The employer had given the employee a warning about this kind of behaviour, but he continued to post these types of comments on Facebook. The employer regarded this type of behaviour as causing it to suffer reputational damage.

Held: by the Employment Tribunal that the employer was entitled to dismiss the employee in terms of Section 98 of the Employment Rights Act 1998.

A link to the full ET judgement in the Weeks’ case can be found below:

https://uk.practicallaw.thomsonreuters.com/Link/Document/Blob/I42aaca4f0c5511e498db8b09b4f043e0.pdf?targetType=PLC-multimedia&originationContext=document&transitionType=DocumentImage&uniqueId=e621efe4-fda9-4b65-9f21-67c5e720fbf0&contextData=%28sc.Default%29&comp=pluk

Game Retail Ltd v Laws Appeal No. UKEAT/0188/14DA

The employee, who worked for Game, had set up a personal Twitter account. This account was followed by colleagues at approximately 65 other Game stores. The settings on the Twitter account were public, meaning that any person could read them. The employee’s tweets typically consisted of a wide range of disparaging and derogatory remarks. The employer dismissed the employee on grounds of gross misconduct.

Held: by the Employment Appeal Tribunal that the dismissal was fair in terms of Section 98 of the Employment Rights Act 1996. These remarks were being publicly broadcasted via Twitter (despite the employee’s assertion that they were private remarks) and these could cause the employer to suffer damage in terms of its reputation.

A link to the full ET judgement in the Game Retail case can be found below:

https://assets.publishing.service.gov.uk/media/592d608ee5274a5e510000fa/Game_Retail_Ltd_v_Mr_C_Laws_UKEAT_0188_14_DA.pdf

Creighton v Together Housing Association Ltd ET/2400978/2016

The employee was a manager of 30 years’ service with the Association, but found himself dismissed for tweeting disparaging remarks about colleagues. These tweets were 2 or 3 years old, but they came to light when another colleague took a grievance against him.

Held: by the Employment Tribunal that the dismissal (on grounds of the employee’s conduct) was fair in terms of Section 98 of the Employment Rights Act 1996. This may seem a harsh decision given that the employee had 30 years of service with his employer, but the Tribunal was clearly of the view that the employer had acted fairly and dismissal was in the reasonable band of responses for such behaviour. In some respects, this case has similarities to another Tribunal decision, Plant v API Microelectronics Ltd (ET Case No. 3401454/2016) 30th March 2016 which was discussed in the blog entitled It happened outside work (or it’s my private life!, which was published on 7 February 2019

Conclusion

The above 3 cases, once again, demonstrate the dangers of social media misuse – whether in the work place or outside. Employers are very foolish if they fail to put a clear social media policy in place. From the employees’ perspective, it is of critical importance that they are (a) aware of the existence of such a policy; and (b) they have read and understood its contents.

It will also be highly advisable for employers to update social media policies on a regular basis (especially as new platforms and technologies will continue to be developed) and to ensure that social media awareness is part and parcel of induction and training regimes.

Admittedly, there are pitfalls for employers: unauthorised or unjustified surveillance of employees could be viewed as a breach of privacy.

Expect this area of employment relations, to continue to generate some interesting case law in the weeks, months and years to come.

Postscript

Following on from the tweets posted by the rugby player, Israel Folau, a second rugby star is embroiled in a further homophobic social media row:

Israel Folau: RFU to meet England’s Billy Vunipola after he defended Australian’s comments

The Rugby Football Union says it does not support Billy Vunipola’s views after the England forward defended Israel Folau’s social media post claiming “hell awaits” gay people.

Copyright Seán J Crossan, 11 April 2019

Drunk and disorderly?

Photo by Bobby Rodriguezz on Unsplash

Misconduct

Several of my previous blogs have focussed on misconduct inside and outside the work place. In the most serious cases of (gross) misconduct, an employer could fairly dismiss an employee (Section 98(2)(b): Employment Rights Act 1996.

That said, employers are well advised to follow proper pre-dismissal procedures – usually in line with the latest ACAS Code of Practice on Discipline and Grievance at Work.

Summary (i.e. on the spot) dismissal can be an appropriate response to a breach of discipline by an employee, but I tend to caution employers against this. The eminent English judge, Sir Roger Megarry VC was quite correct to warn employers about the dangers of what they might perceive to be an open and shut case (see John v Rees & others [1969] 2AER 274, CD). It’s always better to be safe rather than sorry and by carrying out a procedure, the employer is minimising its exposure to risk i.e. the possibility of a successful unfair dismissal claim brought by the employee.

A typical disciplinary process usually consists of the following stages:

  • Stage 1: The investigation of the allegations
  • Stage 2: The disciplinary meeting
  • Stage 3: The appeal hearing

If the investigation uncovers clear evidence that the employee should be exonerated of all allegations of misconduct, the employer is legally bound to put a stop to the disciplinary process (see A v B [2003] IRLR 405; Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522; Miller v William Hill Organisation Ltd UKEAT/0336/12/SM [2013])

It is also important to note that the employer must set out the disciplinary charges as clearly as possible so that the employee can prepare her case. The employer cannot, under any circumstances, play fast and loose with the disciplinary charges as this may undermine the integrity of the entire disciplinary procedure (see Strouthos v London Underground [2004] IRLR 636 CA and Celebi v Scolarest Compass Group UK & Ireland Ltd UKEAT/0032/10/LA [2010]).

If, however, matters proceed to a formal, disciplinary meeting, the allegations must be put to the employee and the evidence which supports them. The employee in turn has the right to present her case to the disciplinary panel or manager taking the proceedings. In terms of the Employment Relations Act 1999, the employee has a right to be accompanied by a colleague or a recognised trade union representative.

Should the disciplinary meeting arrive at a decision to dismiss the employee for misconduct, it is extremely important to allow an appeal (see West Midlands Co-operative Society v Tipton [1986] 1 ALL ER 513). An appeal can lead to the dismissal being upheld or overturned; and it can be used to cure any defects in the previous stages of the disciplinary proceedings.

Discipline at work

It’s very common (indeed essential) for employers to have detailed codes of practice or discipline which regulate the behaviour of employees inside and outside the work place. The content of disciplinary codes should be clearly communicated to employees. For new employees, this could be carried out as part of their induction process. For existing employees, a regular series of training seminars or development events could accommodate this aim. The urban myth that what happened outside the work place is no business of the employer is that exactly that: a dangerous myth. If staff misbehaviour outside working hours causes serious reputational damage to the business or the organisation, the employer is entitled to treat this as gross misconduct and to use the ultimate disciplinary sanction of dismissal.

Examples of gross misconduct might include any of the following:

  • Alcohol and drug abuse
  • Acts of bullying & harassment
  • Fraud
  • Negligent performance of duties
  • Theft
  • Persistent late-coming

The above list is by no means an exhaustive one, but it covers some of the most common examples of gross misconduct.

As I have discussed in a previous blog, It happened outside work (or it’s my private life!) (published on 7 February 2019), employers do not have an automatic right to meddle in employees’ private lives. The right to a private life is protected in terms of Article 8 of the European Convention on Human Rights (as implemented by the both the Scotland Act 1998 and the Human Rights Act 1998). Employers will have to walk a very fine line between what is a legitimate act to protect their business interests and what would otherwise be unwarranted interference in the private lives of employees.

Lloyd’s of London

So, bearing all of the above in mind, it was with some interest that I read today that Lloyd’s of London, the financial giant, was introducing a new code of conduct for employees. This is in the wake of some unpleasant allegations being disclosed about the business – sexual harassment claims and drunkenness and drug taking.

Traditionally, the serving of alcohol at business meetings in the City of London or long, boozy lunches were as much a fixture of the Square Mile as was St Paul’s Cathedral. Alcohol oiled the wheels of commerce it was thought, but it also encouraged people to behave recklessly within a work environment.

It would seem that, in other work places, employees seem to know that they can’t turn up for work under the influence of drugs or alcohol, but Lloyd’s obviously feels that it still has a problem with these issues and they need to be addressed. Admittedly, two years ago, the organisation did ban employees from drinking alcohol between 0900 and 1700 hours.

The new code of conduct at Lloyd’s will apply not only to its 800 employees, but also to any person who holds a pass to its London HQ (potentially such 40,000 individuals). Anyone attempting to enter Lloyd’s HQ who appears to be under the influence of drugs or alcohol (or both) will be denied admission to the premises.

A link to the BBC News article about the new code of conduct at Lloyd’s can be found below:

Lloyd’s of London insurance has a new code of conduct, but not everyone welcomes it.

Lloyd’s of London calls time on drink and drugs

Photo by Boris Stefanik on Unsplash

Conclusion

Misconduct by employees – both in and outwith the work place – can be used by employers as a potentially fair reason for dismissal in terms of Section 98 of the Employment Rights Act 1996. Employers must ensure that employees clearly understand what is expected of them in terms of their conduct. It is very important, however, that employers carry out proper procedures when contemplating dismissal as the ultimate sanction for breaches of the disciplinary code. By implementing a new code of conduct, Lloyd’s of London is carrying out a risk management exercise i.e. spelling out what is and isn’t acceptable behaviour in and outside the work place. This is very wise given the bad publicity which Lloyd’s has experienced in the past regarding allegations of employee misconduct.

Copyright Seán J Crossan, 9 April 2019