Mind your language!

Photo by Ilya Ilford on Unsplash

“Great big girl’s blouse!” or “a girly swot”. Harmless insults; a bit of banter; or perhaps an example of sexist language? Deborah Haynes, a journalist with Sky News, certainly took the view that these remarks were sexist in nature – even though men were the targets (see the link below).

https://news.sky.com/story/sky-views-girly-swot-big-girls-blouse-are-sexist-jibes-and-shouldnt-be-used-by-the-pm-11804690

The first of these remarks was uttered allegedly by Prime Minister Boris Johnson MP in the House of Commons last week and directed towards the Leader of the Opposition, Jeremy Corbyn MP. The second remark was in a memo written by the Prime Minister in which he was critical of David Cameron (one of his predecessors).

Mr Johnson is well known for his colourful language in both print and in his speeches, but he was called out last week in the House of Commons by the Labour MP, Tammanjeet Singh Dhesi who accused him in very blunt terms of making racist remarks about Muslim women who chose to wear the Islamic form of dress known as the burka as an outward sign of their religious beliefs and cultural background.

Mr Tammanjeet drew on his own experiences as a Sikh and the kinds of derogatory remarks that he had to endure. His speech was received very warmly on the Opposition benches of the House of Commons.

On the other hand, Mr Johnson attempted a defence of his language by saying that he had merely spoken up in favour of the good old fashioned liberal value of freedom of speech. It was not an entirely convincing performance from the Prime Minister and far from his finest hour at the despatch box.

The Equality Act 2010 recognises various forms of prohibited conduct such as direct discrimination (Section 13) and harassment (Section 26). Sexist, sectarian and homophobic remarks may well be taken as examples of direct discrimination. A sustained campaign of bullying to which an individual (with a particular protected characteristic) is subjected may amount to harassment.

It will be sensible for employers particularly to spell out to employees what is acceptable (and what is not) in terms of the kinds of language or behaviour in the work-place. If employers do nothing to check discriminatory remarks such as racist or sexist insults, there is a real danger that they could be held vicariously liable.

Had Mr Johnson been a mere mortal, some of his remarks may have come back to haunt him. Employers are entitled to take disciplinary action against those employees who have committed acts of discrimination. After all, they are merely protecting their position by not leaving themselves open to the threat of legal action by the victims.

From the employee’s perspective, engaging in offensive language could give the employer the right to treat this type of behaviour as gross misconduct. It should be recalled that, in terms of Section 98 of the Employment Rights Act 1998, misconduct committed by an employee can be punished by dismissal and such a termination of the employment contract may be entirely reasonable in the circumstances.

In short, no one should have to work in a place where there is a hostile, degrading or intimidating environment. Racist or sexist remarks can be highly suggestive of such a working environment if permitted to go unchecked and unchallenged. Maybe in future the Prime Minister would do well to mind his language.

Links to articles about the Prime Minister’s colourful turn of phrase can be found below:

https://news.sky.com/video/share-11802095

http://news.sky.com/story/boris-johnson-branded-david-cameron-girly-swot-leaked-document-reveals-11803807

Copyright Seán J Crossan, 7 September 2019

Facebook folly

Photo by Kon Karampelas on Unsplash

Regular readers of this Blog will be aware that a number of my previously published articles have commented on individuals being dismissed from employment because they posted offensive or ill advised comments on social media platforms.

Such dismissals can be potentially fair grounds for termination of the contract of employment because the employer will able to claim that the employee’s behaviour (or misconduct) has caused reputational damage.

Section 98 of the Employment Rights Act 1996 makes it very clear that that acts of misconduct committed by the employee can constitute fair grounds for dismissal.

An interesting case which was reported today is McAlpine v Sodexo Justice Services (Sodexo Ltd) ET Case 4121933/18 where McAlpine, a prison officer employed at Her Majesty’s Prison Addiewell, lost his claim for unfair dismissal. On the facts, the Edinburgh Employment Tribunal held that Sodexo, the employer, was justified in dismissing McAlpine for posting offensive comments about Muslims (amongst other things) on Facebook while he was off duty.

It was not a competent defence put forward by McAlpine that some of the remarks which he posted were not his own, but rather those of the far right activist and campaigner, Tommy Robinson (real name Stephen Yaxley-Lennon).

Sodexo had a clear social media policy for its employees and the relevant sections can be found below:

6.1 You must avoid making any social media communications that could damage our business interests or reputation, even indirectly…

6.2 You must not use social media to defame or disparage us, our employees or any third party; to harass, bully or unlawfully discriminate against employees or third parties; to make false or misleading statements; or to impersonate colleagues or third parties”.

In a section entitled Miscellaneous Rules, individuals were informed about the following conditions governing their employment with Sodexo:

Employees must be honest at all times, in connect with their employment and must not breach the trust and confidence that is provided to them by the Company or Client. … Employees must not engage in, condone or encourage any behavior that could be regarded as harassment, bullying, victimisation or discrimination”.

Significantly, Sodexo had also stated that a “… breach of any of these rules would be considered gross misconduct”.

The Employment Tribunal was satisfied that in deciding to dismiss McAlpine for misconduct, the employer had followed its disciplinary procedure correctly and the ultimate sanction of termination of his employment was within the band of reasonable responses.

It is worth noting that the employer’s disciplinary procedures were fully in accordance with the current ACAS Code of Practice.

In these circumstances, it can hardly be surprising that McAlpine lost his case.

A link to the Employment Tribunal’s judgement can be found below:

https://assets.publishing.service.gov.uk/media/5d1dcab8ed915d0bc72d8700/McAlpine_v_Sodexo_-_4121933-2018_-_Judgment.pdf

Copyright Seán J Crossan, 3 September 2019

Bad medicine

Photo by Kendal James on Unsplash

A story which caught my eye over the last few days comes from the fair Canadian City of Toronto and involves misconduct dismissals. For a change, the dismissals do not involve social media misuse, but rather good old fashioned fraud.

150 members of staff working at a Toronto hospital were sacked for involvement in a sophisticated prescription fraud which was reportedly in the region of £3 million over an 8 year period. Defrauding your employer is, of course, an extremely serious breach of trust which materially undermines the contract of employment.

Interestingly, at this point, the Police in Toronto have not charged any individual with the crime of fraud – yet – but clearly the employer feels that it has sufficient grounds to go ahead with the dismissals.

I often to say to students that the employer merely has to have a reasonable suspicion that the employee has committed an act of misconduct. There is no need for the employer to demonstrate that the allegation(s) of misconduct meets the criminal standard of proof.

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

http://news.sky.com/story/150-toronto-hospital-staff-fired-over-prescription-scam-11760982

Had this story occurred in the UK, we would be talking about the matter in the context of Section 98(4) of the Employment Rights Act 1996. If employers can show that the reason for the dismissal of employees is justified i.e. on the grounds of misconduct (fraud), it will be a fair dismissal. As a point of good disciplinary policy, of course, employers should always follow the proper procedures when deciding to dismiss employees on the grounds of dismissal.

Copyright Seán J Crossan, 13 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

I’m a political activist: don’t sack me!

Photo by Oprea Marius on Unsplash

Over the last few months, several of my blog entries have examined the impact of conduct or behaviour of employees which occur outside working hours. The focus of these blogs has largely centred upon social media use (or misuse if you prefer) by employees and the likely consequences of reputational damage which the employer might suffer. 

The overwhelming conclusion that visitors to this site should now have is that I take the view that what employees do in their private lives can have a significant impact on work-place relations. Yes, primarily we do  have rights to privacy, expression and association as enshrined in Articles 8, 10 and 11 respectively of the European Convention on Human Rights (amongst other things), but does this does not give us a blank cheque or free pass to behave badly or engage in downright  dubious activities outside working hours. In other words, our Convention rights are not absolute. 

I decided to write this recent blog entry on the back of a story which appeared in The Independent last month in conjunction with the lead up to the European Parliamentary elections held in Germany on 26 May 2019. It was reported that a German national – Dr Gunnar Beck – was a candidate for a far right political party in Germany called the AfD (the Alternative for Germany). 

Dr Beck is currently employed as a law lecturer at SOAS, University of London and many of his colleagues and the students were outraged when they learned that he was running as an AfD candidate for one of Germany’s seats in the European Parliament. There were calls for Dr Beck to be dismissed from his post at SOAS. 

As it happened, Dr Beck was one of 10 German MEPs elected for the AfD Party.

This story is a very good example of issues such as freedom of speech versus the employer’s duty to prevent discrimination and intolerance in the work-place. 

What should employers do if they stand accused of being complicit in the spread of extremist views or beliefs by one of their employees? It can be a very difficult call to make. 

A link to the story about Dr Beck as reported by The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.180519/data/8919156/index.html

Section 98(4) of the Employment Rights Act 1996 gives the right to dismiss employees (quite fairly) for misconduct – whether in the work-place or outside. 

Furthermore, we live in times where political extremism of all shapes is much more prevalent. Again, the Employment Rights Act 1996 gives employers – primarily agents of the State e.g. the Police and the intelligence services (and other sensitive posts) – the right to dismiss employees on national security grounds (see Home Office v Tariq [2011] and Kiani v The Secretary of State for the Home Department [2015]). Such a dismissal – even where the evidence against the employee in question might be fairly tenuous – would still constitute an automatically fair dismissal. 

Section 10 of the Equality Act 2010 does protect an individual’s philosophical beliefs, but this does not mean that all sorts of extremist views will necessarily be tolerated (or should be tolerated) by employers. 

In Redfearn v Serco t/a West Yorkshire Transport Services (2005) the  employer dismissed Mr Redfearn on health and safety grounds because of his membership of the racist British National Party (BNP). Redfearn’s political affiliations might lead to violence arising in the workplace. 

This was not the last word on the matter and Redfearn took his claim to the European Court of Human Rights on the basis that the then United Kingdom equality laws did not provide sufficient protection to individuals like him who suffered discrimination on grounds of their philosophical (political) beliefs.

In Redfearn v UK [2012] the European Court of Human Rights stated that Redfearn had been dismissed on account of his membership of the British National Party and this was an example of unlawful discrimination. This decision effectively ensured that the protected characteristic of a person’s philosophical beliefs (now contained in the Equality Act 2010) is capable of including political beliefs.

In Grainger plc v Nicholson (2009), the Central London Employment Tribunal stated that individuals seeking the protection of the law [now contained in Section 10 of the Equality Act] must prove that the belief was “a weighty and substantial aspect of human life and behaviour”

A belief which demonstrates “a certain level of cogency, seriousness, cohesion and importance” and this belief is ultimately “worthy of respect in a democratic society, [that it] be not incompatible with human dignity and not conflict with the fundamental rights of others”.

This would seem to rule out protection for extremist beliefs, but as Redfearn UK [2012] clearly established employers will have to tread carefully. Essentially, the upshot of Redfearn is that employees are entitled to hold views which a large group within society may well find abhorrent and objectionable, but nonetheless such views fall within the protected characteristic of philosophical beliefs. Turning now to the employee holding such views or beliefs, the European Court of Human Rights made it very clear that such individuals did not have a right to act on these beliefs. So, for a person such as Mr Redfearn, he undoubtedly espoused racist beliefs by virtue of his BNP membership, but critically he had never acted upon these during his employment by, for example, subjecting a person from an ethnic minority group to unlawful, less favourable treatment. 

In 2018, Councillor Christopher McEleny of the Scottish National Party took legal action against his former employer, the UK Ministry of Defence for alleged discrimination and constructive dismissal  by reason of his political beliefs. An Employment Tribunal Judge, Frances Eccles ruled that McEleny’s beliefs in Scottish independence should be treated as a philosophical belief in terms of Section 10 of the Equality Act 2010.

Whether McEleny ultimately wins his Employment Tribunal claim on what exactly motivated his ex-employer to act in the way that it did towards him remains to be seen. It is a decision or outcome in which many people are undoubtedly interested. 

Copyright Seán J Crossan, 5 June 2019

 

Social media and dismissal

Photo by Alex Haney on Unsplash

Regular readers of this Blog will know that I have written several articles over the last few months about the legal consequences of social media (mis)use and the effects on relationships in the work place. Comments or images posted on social media by employees can have serious reputational consequences for their employers.

The Israel Folau case

In a blog published on 11 April 2019 (Social Media Misuse), I discussed the story about Israel Folau, the Australian rugby player who had posted homophobic comments on social media. Folau has now been dismissed by Australia for these remarks.

Please see a link to the story on the Sky News website:

Israel Folau: Australian rugby star sacked over anti-gay social media post
http://news.sky.com/story/israel-folau-australian-rugby-star-sacked-over-anti-gay-social-media-post-11721930

The employer must, of course, be able to prove reasonably that the employee’s misuse of social media will cause it to suffer reputational damage.

In Taylor Somerfield Stores Ltd ETS/107487/07 an employee was dismissed after posting a video on Youtube which involved a mock fight using Somerfield carrier bags in the work place. The video was uploaded to Youtube for a mere 3 days and only 8 people had viewed it – 3 of whom were managers conducting the disciplinary investigation. The Employment Tribunal was firmly of the view that the dismissal was unfair because the employer was not able to prove that it had suffered serious reputational damage.

As I have emphasised in previous blogs, employees will be very naive if they think that it is a competent defence to say that the social media posts occurred outside working hours. Employers are still very much entitled to treat such behaviour as an example of a breach of work place discipline. In serious cases of social media misuse, employers will be entitled to consider dismissal of employees on the grounds of misconduct (as per Section 98(4) of the Employment Rights Act 1996).

Admittedly, this area represents something of a tightrope for employers to walk: they will have to operate a clear and comprehensive social media policy and employees must be made aware of any restrictions or expectations.

In the unreported Employment Tribunal decision of Grant and Ross Mitie Property Services Ltd (2009), the employer had a policy which restricted employee internet access. Unfortunately, for the employer, the phrase which permitted employee’s personal use of the internet to times that were “outside core working hours”, was deemed by the Tribunal to be ‘vague’ and lacking in certainty. This meant that the employees who had been dismissed because the employer was of the view that they had breached its policy on internet use had been unfairly dismissed.

There is also the matter of the rights that employees reasonably have to privacy and freedom of expression (as per their Article 8 and 10 rights respectively to be found in the European Convention, the Human Rights Act 1998 and the Scotland Act 1998) (see Bărbulescu v Romania Application no. 61496/08 5 September 2017; and Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch)).

I have also pointed out in previous blogs, the importance for employers in carrying out disciplinary proceedings which comply with current ACAS Guidance. Using the (current) ACAS Guidance is a critical risk management exercise for employers:

https://beta.acas.org.uk/investigations-for-discipline-and-grievance-step-by-step

Employers who act recklessly or swiftly and ignore proper procedures may well have cause to regret their actions down the road. As Sir Robert Megarry VC, the eminent English judge, remarked decades ago in John Rees [1970] 1 Ch 345:

When something is obvious, they may say, why force everyone to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard?As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; …

The above remarks are as valid in 2019 as they were in Sir Robert Megarry’s day.

Atherton v Bensons Vending Ltd ET/2411749/2018

This is a recent decision of the Manchester Employment Tribunal which raises some very interesting issues about employee use of social media specifically and the conduct of disciplinary proceedings more generally.

Darren Atherton (aged 55) worked for Bensons Vending Ltd, a small company. As a result of his employer making changes to its discretionary Christmas bonus scheme, Atherton made some very negative comments about the company’s Managing Director, Ken Haselden via a colleague’s Facebook page:

Comment 1

We’ve all just bought Ken a new dog with our Christmas bonus!!!”

Comment 2

“He spends a few grand on a new dog then we get told ‘no bonus this year’ but we can have a bottle!!! 

Comment 3

“Well, he can stick his bottle where the sun doesn’t shine because I refuse to be insulted in this way!!!

Atherton’s colleague, Simon Minshull had initially objected to the changes to the bonus scheme by posting comments on his Facebook page:

Comment 1

Just when you thought staff morale couldn’t get any worse, hey f***ing presto #insult #disgusted.”

Comment 2

The only difference between McDonalds and where I work is McDonalds has only one clown running the show.” (This second comment was accompanied by a picture of Ronald McDonald).

The changes to the bonus scheme were part of a cost cutting and efficiency savings exercise by the company and, from any reading of the above comments, Atherton and Minshull clearly disagreed with this new approach by their employer.

Negative remarks about the Managing Director were also made by Atherton and another colleague in the workplace. Several colleagues informed Haselden about these remarks stating that they had been very aggressive and vitriolic in nature.

Atherton’s colleague, Simon Minshull, was subsequently questioned about the posts on his Facebook account by Haselden. Minshull stated that he did not agree with them – they were Atherton’s opinions – and he apologised for any offence caused to Haselden. He was later suspended for the Facebook posts, but critically this suspension was lifted in the light of his swift apology to Haselden (and the fact that it was established that he had not made these comments). Minshull was permitted to return to work upon the conclusion of the disciplinary proceedings against him.

Atherton was called to a meeting with Mr Haselden in December 2017 to address the allegations which had been made against him and to investigate the social media posts. This was not a disciplinary meeting, but more in the way of an investigatory meeting. The actual disciplinary meeting took place in January 2018.

Dismissal without notice pay

The outcome of the disciplinary meeting was that Atherton should be dismissed without notice pay for gross misconduct in terms of Section 98(4) of the Employment Rights Act 1996. This was despite the fact that Atherton had a clean disciplinary record (until now) and had enjoyed a good relationship with his employer. Atherton’s comments on Facebook were “extremely derogatory” and Mr Haselden stated that he would find it “extremely difficult” to continue working with him. Atherton appealed against his dismissal, but the decision was upheld.

The fairness of the disciplinary proceedings

As part of his claim against the employer, Atherton challenged the fairness of the disciplinary proceedings taken against him. In particular, he objected to the fact that Haselden conducted the disciplinary meeting against him. Atherton’s contention was that he would not receive a fair hearing because Haselden was personally involved in the matter and, therefore, could not be relied upon to act objectively. This type of issue frequently arises where smaller employers are concerned. In an ideal world, a manager (such as Haselden) who has been involved personally in an issue involving alleged breaches of work place discipline should not be a participant in the disciplinary panel. This is, of course, easier in practice to ensure in larger organisations where there is a pool of experienced managers who will have had no personal involvement in the matter (or in other words: a particular axe to grind).

The appeals process

In situations involving smaller employers, this is where the appeals process takes on a critical significance. Appeals can often be used to cure actual or perceived defects in the conduct of the original disciplinary meeting. Although Haselden (with two others – an operations manager and a company engineer) had conducted the disciplinary meetings, he had not involved himself in the actual appeals hearing. This part of the company’s disciplinary procedure had been conducted by a Ms Pedley, a trained auditor and, as stated, above, Atherton’s dismissal was upheld.

At this point, Atherton also raised the difference in treatment between himself and Simon Minshull (who had kept his job after disciplinary proceedings against him had been concluded). Pedley refused to comment on individual cases on the grounds of confidentiality. She stated in her letter to Atherton upholding the dismissal that:

Length of service and clean disciplinary record are taken into consideration during all grievance procedures. However, given the
nature of the comment and the reluctance to remedy the grievance the
relationship between yourself and senior management has broken down
irretrievably”.

The Employment Tribunal’s decision

The Tribunal held that Atherton had been fairly dismissed in terms of Section 98(4) of the Employment Rights Act 1996.

He had made extremely derogatory comments via Facebook about Haselden. They were “personal” and they suggested “some impropriety” on Mr Haselden’s part (though more in the nature of “penny-pinching impropriety” suggesting Scrooge like behaviour rather than any financial misdeeds). Any member of the public who knew the company and reading Atherton’s comments on Simon Minshull’s Facebook site, would have a very negative view of Haselden. It was accepted by the Tribunal that Haselden would, therefore, potentially suffer reputational damage. It was also accepted that in a small company, it would be very difficult for Atherton and Haselden to work with one another again (the employment relationship had irretrievably broken down).

The Tribunal also addressed Atherton’s claim that the disciplinary procedure had been biased or lacking in objectivity because of Haselden’s involvement in the decision to dismiss him from employment. This indeed could have been a problem for the employer and may have prejudiced proceedings against Atherton. That said, however, the saving grace for the employer was the fact that Ms Pedley had been kept in reserve for an appeal hearing.

The Employment Tribunal Judge made the following observations about Pedley’s involvement in the appeal stage:

Ms Pedley is by profession an auditor and had clearly gone through the matters in great detail. Notes (page 95 and onwards) show how she dealt with the matter. … Because of that safeguard of the deployment of Ms Pedley, who I am satisfied went about her task objectively and exhaustively and independently, although regrettably for the claimant she came to the same conclusion, I am not satisfied that the determination by Mr Haselden at the dismissal stage rendered the dismissal unfair. The appeal was thorough, it was a re-hearing. Ms Pedley considered all the points that were being raised and came, I am satisfied, to an independent conclusion.”

As for the difference in outcomes between Atherton and Simon Minshull, a key justification for this was that Minshull had “apologised shortly after being challenged regarding his Facebook comments even though he had been suspended.” This was something that Atherton had failed to do – apologising only at the disciplinary meeting in January 2018. Furthermore, it was significant that the nature of Atherton’s comments were specifically directed against Haselden, whereas Minshull’s comments (although also negative) were much more generalised.

The failure to pay notice pay

This was an aspect of the employer’s decision that the Employment Tribunal disagreed with. Atherton, therefore, had a right to receive his entitlement to notice pay. In this sense, he had been wrongly dismissed by his employer. The Employment Tribunal judge stated very clearly that in order for an employee to lose his entitlement to notice pay there the employer must be able to demonstrate that the gross misconduct complained of crosses over a “very high hurdle”. In the judge’s opinion, the employer had not been able to overcome this hurdle and, therefore, Atherton was entitled to claim notice pay.

A link to the Employment Tribunal’s judgement in Atherton Bensons Vending Ltd can be found below:

https://assets.publishing.service.gov.uk/media/5c4712dfe5274a6e6b6716e1/Mr_D_Atherton_v_Bensons_Vending_Limited_-_2411749_2018_-_Reasons.pdf

Conclusion

What have we learned about the decision of the Employment Tribunal in Atherton Bensons Vending Ltd?

Quite a lot actually:

  1. Employees will have to be extremely careful when posting material or comments on social media platforms – irrespective of whether this is about the employers or not.
  2. The case is yet another good example that misconduct committed inside or outside the work place or working hours can have reputational consequences for the employer. It can also lead to relationships in the work place breaking down irretrievably (especially in smaller organisations).
  3. Employers do not have a free hand to police employee use of social media. There must be clear guidelines laid down by the employer as to what constitutes acceptable and appropriate behaviour. At the same, employees have reasonable expectations that their rights to privacy and expression (as per the European Convention on Human Rights) will be upheld.
  4. The conduct of disciplinary proceedings by the employer is a critical issue. We have noted that potential conflicts of interest can occur in smaller employers or organisations where a manager can be investigator, dismissing officer and appeals officer. How does the employer address these issues and ensure objectivity in the disciplinary process?
  5. As with Atherton and Minshull, the employer was entitled to treat them differently: Atherton was dismissed while Minshull retained his job. There was nothing inconsistent or inherently unfair about this when the personal circumstances and behaviour of the two employees was examined.
  6. Finally, even in situations where gross misconduct has been proved by the employer, and the dismissal is deemed to be fair (in terms of Section 98(4): Employment Rights Act 1996), it will not necessarily mean that the employee loses his or her right to notice pay. The employer will have to overcome an extremely high hurdle in order to be entitled to invoke such a disciplinary sanction. As we have seen in Atherton, the Tribunal was not convinced that the employer had been able to prove that this was an appropriate punishment: the dismissal was fair; the failure to pay notice was not.

Copyright Seán J Crossan, 20 May 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