Tag: Employment Law

Ungagged?

Photo by Igor Rand on Unsplash

Should employers be permitted to insist on the inclusion of a “gagging clause” or non disclosure agreement (NDA) when they settle a claim outside court or tribunal for alleged harassment or discrimination?

Maria Miller MP, Chair of the Women and Equalities Committee of the House of Commons certainly doesn’t think so. Ms Miller is firmly of the view that the UK Parliament should introduce legislation, at the earliest opportunity, to outlaw the widespread use of “gagging clauses” or non-disclosure agreements.

A link to the Committee’s Report can be found below:

https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/inquiries/parliament-2017/nda-inquiry-17-19/

In April 2019, the BBC revealed that Ulster University in Northern Ireland had paid out approximately £226,000 as part of 6 settlement agreements involving former members of staff who had brought claims for discrimination and harassment while employed at the institution. These settlement agreements contained confidentiality clauses, “gagging” clauses or NDAs (the reader is free to decide which term is preferred). The BBC also discovered that 96 UK universities had used NDAs representing £87 million in value. A truly staggering figure and one can only wonder what would be the figure for settlements in privately run businesses.

Confidentiality clauses are often a staple feature of cases brought to the Employment Tribunal. The parties may well decide to settle the claim privately before proceedings are concluded. It tends to be the case that the employer party is keen to include a confidentiality clause in the settlement agreement as a condition of making a payment to the ex-employee. It should be said of course that in these types of settlement agreements, the employer is making the payment without admission of liability and the reason for choosing this method to resolve the claim can often be purely about simple economics i.e. you weigh how much it would cost you in legal expenses and disruption to your organisation for representation at a 5 day Tribunal hearing as opposed to settling the claim quickly.

NDAs started life as a way of ensuring that former employees who had previously worked for organisations were not tempted to disclose trade secrets (or other information) to their new employers which they had acquired in their old jobs.

Admittedly, the common law imposes a number of duties on employees such as:

  • to provide loyal service;
  • to act in good faith;
  • to ensure confidential information remains secure

Now, it would be something of a stretch for employers to argue that the above duties permitted them to ‘gag’ employees who had been the victims of discrimination and harassment in the work-place – hence the rise of the NDA. This is where employers get the victims to enter into a legally binding settlement agreement where, in return for a compensation payment (and sometimes an agreed reference), the victim promises not to discuss their situation with anyone other than his or her legal advisers.

Since the rise of the #MeToo and Time’s Up movements, there has been much more interest in these types of settlement agreements as more and more allegations about sexual harassment in the work-place have come to light. It has been alleged that individuals such as the disgraced American film producer, Harvey Weinstein and the British retailer, Sir Philip Green made use of NDAs to prevent people discussing how they were treated when they worked for these individuals. These agreements are seen as a sinister attempt to buy the victim’s silence by rich and powerful men who have seemingly bottomless pockets and inexhaustible legal resources.

Maria Miller and her colleagues on the Women and Equalities Committee are now saying time’s up for these types of arrangements.

Links to the stories about the work of the Women and Equalities Committee and the use of NDAs at Ulster University can be found below:

NDAs: MPs call for ban on ‘gagging clauses’ over ‘cover-up’ fears

https://www.bbc.co.uk/news/uk-northern-ireland-47981244

Postscript

In July 2019, the UK Government announced that it plans to introduce a Bill to Parliament in order to ban the widespread use (and abuse) of non disclosure agreements in employment contracts.

A link to this story on the BBC news site can be found below:

NDAs: New laws to crack down on ‘gagging’ clauses

A ban will be placed on NDAs that stop people speaking to police, doctors or lawyers, ministers say.
The scale of the problem of alleged harassment in the work-place and how employers deal with this can be seen in the article below which appeared in The Independent:

Copyright Seán J Crossan , 12 June and 21 July 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 v 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 v 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 v 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 v 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 v 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 v 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

Veganism = Discrimination?

Photo by Ivana Milakovic on Unsplash

Regular readers of this Blog will be aware that several of my previous articles have examined whether veganism could be a protected characteristic (a philosophical belief) in terms of Section 10 of the Equality Act 2010.

We still await the decision of the London Employment Tribunal in relation to the case of Jordi Casamitjana v League Against Cruel Sports (lodged in December 2018) which will give us a first indication as to whether veganism is capable of being a protected characteristic in terms of the Equality Act.

A link to an article on the BBC website about Mr Casamitjana’s claim can be found below:

Sacked vegan claims discrimination in landmark case

A landmark tribunal will decide whether veganism is a “philosophical belief” akin to a religion.

In the meantime, Crossland Solicitors (an Oxfordshire based law firm) have carried out some really interesting research concerning the issue of vegan beliefs and work-place discrimination.

Nearly 1,000 employees and 1,000 employers took part in the research. The conclusions from this exercise are that nearly 45% of employees are of the opinion that they have experienced less favourable treatment due to their beliefs and nearly a third of respondents felt that they had been actively victimised by their employers because of their veganism. It seems to be the case that a large number of employers take the view that veganism is a fashion trend or a fad as opposed to an ethical and philosophical set of views which guides people in their daily lives.

Hopefully, the London Employment Tribunal will issue it’s decision in the very near future about Mr Casamitjana’s claim in order to provide some needed clarity to this area of the law.

A link to the research on Crossland’s website can be found below

https://www.crosslandsolicitors.com/site/cases/nearly-half-of-vegans-feel-discriminated-against-at-work

Copyright Seán J Crossan, 12 May 2019

How dare you mention my age!

Photo by Elena Saharova on Unsplash

The above picture may conjure up blissful images of a well deserved retirement, but the reality can be very different for many older employees and workers. Financial necessity and a higher state pension age may mean that many individuals will have to remain in work for much longer than they would like.

In October 2011, the UK Parliament issued a PostNote entitled “An Ageing Workforce” which made the following observations in its introduction:

“Over the next decade, the changing age profile of the workforce will be the most significant development in the UK labour market, as a third
of workers will be over 50 by 2020. Employers will be expected to respond to this demographic shift by making work more attractive and feasible for older workers, enabling them to work up to and beyond State Pension Age (SPA) if they are capable.”  

Significantly, this PostNote went on to state:

“Within 20 years, nearly a quarter of the UK population will be aged 65 or over. People are now spending an average of 7 years longer in retirement than in the 1970s …”

A link to this PostNote can be found below:

Click to access postpn391_Ageing-Workforce.pdf

Not much has changed for the better it would seem. Some 7 years later, the above conclusions would also be mirrored by a Report issued by the Women and Equalities Committee of the House of Commons on 17 July 2018 which stated:

“The talents of more than a million people aged over 50 who want to work are being wasted because of discrimination, bias and outdated employment practices. … Government and the Equality and Human Rights Commission (EHRC) are failing to enforce the law on age discrimination and must be clearer that prejudice, unconscious bias and casual ageism in the workplace are all unlawful under the Equality Act 2010.”

A link to the Committee’s Report can be found be found below:

https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/older-people-employment-report-published-17-19/

It’s all very well going on about the need for people to work beyond state pension age, but what if older employees and workers find themselves being actively discriminated against by employers? What rights (if any) do they have? Admittedly, age discrimination is not just problem for older people; younger people can often find themselves victims of this type of discrimination (see Hutter v Technische Universität Graz (2009)). 

Age discrimination in the news

I was thinking about unlawful age discrimination this week after reading a story on BBC Northern Ireland’s website. It was reported that the Arts Council of Northern Ireland had been sued by its former Chief Executive, Roisin McDonough who was alleging age discrimination. Ms McDonough has now settled her claim with the Arts Council for £12,000. It was alleged by Ms McDonough that the issue centred around the failure by the Arts Council to consider giving her the option of flexible retirement arrangements. She had requested that she be allowed to work 4 days instead of 5 from 1 April 2017. Apparently, this request was never dealt with properly and Ms McDonough was subsequently asked to name a date when she intended to leave her employment. 

A link to the BBC Northern Ireland article can be found below: 

Age discrimination: Arts chief Roisin McDonough awarded £12,000

Roisin McDonough claimed the Arts Council had discriminated against her because of her age.
 

 

The Equality Act 2010

It was only with the introduction of the Employment Equality (Age) Regulations 2006 that unjustified age discrimination became illegal across the UK. Please note that I have deliberately used the word ‘unjustified’ in my first sentence because there can be situations where discrimination on the grounds of a person’s age can be be quite lawful (more about that later in this blog). 

The 2006 Regulations have now been replaced by the Equality Act 2010. For dedicated Brexit followers, these Regulations were introduced because, in 2000, the European Union passed Council Directive 2000/78/EC of 27 November 2000 which established a general framework for equal treatment in employment and occupation. Interestingly, this Directive also spawned new legal protection in relation to a person’s sexual orientation and religion and belief. Admittedly, the scope of the Directive was limited to the area of employment. It did not cover these types of discrimination in relation to the provision of goods and services. 

We have since moved on and many of the key principles of the Directive are now to be found in the Equality Act 2010. 

Section 5 of the Equality Act states that in relation to the protected characteristic of age:

(1) (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same age group.

(2) A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.

It is, therefore, unlawful for employers and service providers to discriminate against an individual on the grounds of that person’s age. Employers must be particularly careful in relation to recruitment policies and procedures, terms and conditions of employment, promotion and training opportunities and termination of the employment relationship. Practically speaking, this will mean that employers will have to be especially careful when recruiting workers to their organisations.

Any advertisements or recruitment criteria which seem to suggest a preference for one age category over another should be discouraged – unless there is a sound legal reason for this. It’s probably very unwise for recruiters to use phrases like ‘Mature person sought for post’; ‘Dynamic individual preferred’ or ‘Youthful enthusiasm’ or ‘Are you still hungry enough to succeed?’ (see Canadian Imperial Bank of Commerce v Beck 2010; McCoy v James McGregor and Sons Limited and others 2007; and Hutter v Technische Universität Graz (2009)).

That said, there are situations where the law will permit differences in treatment based on a person’s age. The National Minimum Wage Act 1998 and the associated Statutory Regulations, for example, continue to operate meaning that workers can be paid different minimum and living wage rates depending on their age. In situations involving redundancy, those employees with 2 or more years’ continuous service will be entitled to receive a statutory redundancy payment. It is very likely that older employees may have longer service than their younger colleagues and will, therefore, be better off financially under the employer’s redundancy arrangements.

A case where an employer attempted unsuccessfully to justify direct age discrimination occurred in O’Reilly v (1) BBC & (2) Bristol Magazines Ltd (2010) Miriam O’Reilly, a very experienced and well regarded radio and television journalist, lost her job as one of the main presenters of the BBC’s popular Countryfile television programme (which has been broadcasting since 1989 until the present day). Ms O’Reilly was then 51 years of age. This was part of a strategy by the BBC to appeal to a much younger audience. The new presenters who had been recruited to work on the programme were all in their 30s. 

Held: by the Employment Tribunal (unanimously) that O’Reilly had been subjected by the BBC to direct age discrimination and that the BBC and Bristol Magazines Ltd had subjected her to age victimisation. Claims for sex discrimination were not proved. The Tribunal was strongly of the opinion that had O’Reilly been 10 or 15 years younger, she had would have been in a strong position to retain her presenting post on the programme. In fact, it was heard during the evidence that the BBC had considered offering Michaela Strachan (a well known television presenter who had guest presented on the show) a permanent presenting job. Strachan was then aged 42 as opposed to O’Reilly who was 51. 

Health and safety considerations might seem like a fairly straightforward way of justifying age discrimination in relation to certain jobs which rely on the person displaying a high level of technical competence e.g. an airline pilot, but employers will have to be very careful here that they do not use this issue as a blunt instrument as the Court of Justice of the EU decided in Case C-447/09 Prigge and Others v Lufthansa [2011].

In Prigge, Lufthansa, the German national airline operated a compulsory retirement age of 60 for its pilots. Prigge and a number of other pilots who had either reached or were approaching this age, objected to the policy on the grounds that it was an example of age discrimination. Lufthansa, amongst other things, argued that the policy could be objectively justified on the grounds of health and safety.

Held: by the Court of Justice that Lufthansa’s mandatory retirement age of 60 could not be objectively justified and was not a proportionate means of achieving a legitimate aim. The airline had committed unlawful discrimination on the grounds of age by operating the compulsory retirement age.

For many years, the UK in common with many other EU member states permitted employers to operate compulsory retirement ages. Until 2011, the default UK retirement age for both men and women was 65. This has now been abolished and people have the right to request that they permitted to work on. 

As a consequence of major demographic change i.e. a rapidly ageing population in this country, it will be necessary for people to work for longer than previous generations. A person’s entitlement to receive a state and/or occupational pension scheme has been raised to 66 years of age if you intend to retire by October 2020 (and then to age 67 between 2026 and 2028). These projections may still be overly optimistic given the UK’s demographic time bomb and, in 2016, the Independent Review of Retirement Income, chaired by Professor David Blake of Cass Business School, submitted that people would have to work into their seventies in order to avoid hardship and poverty in their old age. This research was also supported by a study by Royal London which suggested a retirement age of 77!  

The Court of Justice of the European Union gave cautious approval to the UK’s then default or mandatory retirement age of 65 (see Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform (2009)). Compulsory retirement ages set by EU member states were essentially a proportionate means of achieving a legitimate aim i.e. the orderly management of a country’s labour market and the opening up of employment opportunities for younger people.

Having said that, with the abolition of the UK’s default retirement age, employers will still have to be careful how they handle the issue of older employees. Requests to continue working by those individuals in the older age demographic will have to be considered seriously by employers. Employers may be justified in refusing to continue employment if they can demonstrate that an older employee falls short of a basic (objective) standard of mental or physical abilities required to perform the job; or in situations where the law lays down the retirement age. Finally, we should also be aware that younger people can also be the victims of age discrimination. 

ACAS Guidance on Age Discrimination

In March 2019, ACAS helpfully produced new guidance on how to prevent age discrimination in the workplace.

Some of the ACAS examples can be found below:

Example 1 – Ordinary direct discrimination (Section 13: Equality Act 2010)

Manager Louise is looking to fill a role which will require the successful applicant to then complete difficult training. She instructs her HR manager to discount her team’s younger members, presuming they will not want the hard work. She also tells HR to discount older members, thinking they will not adapt to the change. Instead she shortlists Bruce and Mikel, believing people in their mid-thirties are more likely to have the necessary blend of ambition and sense of responsibility. Her actions are likely to be discriminatory.

Example 2 – Direct discrimination by association (Section 13: Equality Act 2010)

Senior manager Jurgen decides not to invite employee Sarah and her partner Claude to a business party because Claude is much older than her. Jurgen feels Claude would not fit in with the party mood. This is likely to be discriminatory.

Example 3 – Direct discrimination by perception (Section 13: Equality Act 2010)

Siobhan is turned down for a supervisor’s job because her bosses decide she does not look mature enough for the role. They think she looks about 20. In fact, she is 30. Her bosses’ decision is likely to be discriminatory.

Example 4 – Indirect discrimination (Section 19: Equality Act 2010)

City centre gym manager Esme tells employees she needs two more staff to work on reception. She adds that anyone interested needs to look ‘fit and enthusiastic’ as the gym is trying to encourage more young people to join. Her requirement may indirectly discriminate against older staff unless it can be objectively justified.

Example 5 – Harassment (Section 26: Equality Act 2010)

Sixty-year-old Margaret feels humiliated and undermined at the store where she works because of her age. Despite her extensive experience in retailing and recently gaining a qualification as a visual merchandiser, her manager Darren regularly tells her in front of other staff that she is ‘out of touch’ and that the store needs ‘fresh blood’. Darren’s behaviour is likely to be harassment.

Example 6 – Victimisation (Section 27: Equality Act 2010)

Manager Alan tells apprentice Reyansh he is happy with his progress and performance. Reyansh then feels confident enough to tell Alan that some of the older employees regularly make fun of him because of his age and play pranks such as leaving toys where he’s working. Reyansh wants this to stop. Alan tells Reyansh to toughen up and that the firm has no time for complainers. Some weeks later Alan punishes Reyansh for complaining by cancelling his training course. This is likely to be victimisation.

The ACAS Guidance can be accessed using the link below:

Click to access Age_discrimination_key_points_for_the_workplace.pdf

Copyright Seán J Crossan, 9 May 2019

Get me an Uber!

Photo by Thought Catalog on Unsplash

An interesting story today about industrial action being taken by taxi drivers working for Uber. The action is taking place in the USA and in cities across the UK (including Glasgow). It is designed to draw attention to working practices within the company before it lists its shares on the New York Stock Exchange.

Quite a few of my previous blogs have looked at employment status and the steady increase in the number of individuals who provide services to organisations but, critically, not under the traditional employment contract model.

Section 230(1) of the Employment Rights Act 1996 contains the definition of who precisely is an employee i.e. someone who has a contract of service. If you don’t have this type of contractual arrangement (you’re not an employee), you may well be working under a contract for services. This is one of the most important distinctions in employment law in the United Kingdom.

Those individuals working under a contract for services – precisely because of their lack of employment status – are often denied access to the sorts of legal rights which employees routinely take for granted e.g. unfair dismissal protection, redundancy protection, family friendly rights, rights to information and consultation etc.

Admittedly, employees will not acquire these rights from day 1 of their employment, but the critical difference in relation to people working under a contract for services is that they have the potential to obtain employment rights (by completing the requisite period of continuous service e.g. 2 years’ continuous service for entitlement to protection against unfair dismissal and for entitlement to a redundancy payment.

There’s now a growing awareness on both the part of the UK Government (The Taylor Review) and the European Union (the forthcoming EU Directive on Transparent and predictable working conditions) that people on contracts for services deserve greater levels of work-place protection.

The industrial action being taken by Uber drivers today is principally an attempt by these types of workers to secure better contractual terms and conditions. The law does now appear to be recognising that individuals working for organisations such as Uber (and Lyft) are not genuinely self-employed persons. Rather they should be categorised as workers with an entitlement to a basic level of legal protection (see the English Court of Appeal’s decision in Uber BV & Ors v Aslam & Ors [2018] EWCA Civ 2748 on appeal from UKEAT/0056/17/DA).

A link to the Aslam judgement can be found below:

https://www.judiciary.uk/wp-content/uploads/2018/12/uber-bv-ors-v-aslam-ors-judgment-19.12.18.pdf

A link to an article on the BBC website about the industrial action can be found below:

https://www.bbc.co.uk/news/business-48190176

Copyright Seán J Crossan, 8 May 2019

TUPE or Redundancy?

Photo by Ian Tormo on Unsplash

Readers of this blog will know that TUPE and redundancy are two employment law issues which have featured regularly in the last month or so.

So, today, we have a story which combines both.

Jobs lost as courier SGM Distribution goes into liquidation

SGM Distribution, a courier company, based in North-East Scotland (Aberdeen and Letham to be precise) has gone into liquidation. Thankfully, 51 of the DGM employees have had their employment transferred to another employer. These fortunate individuals will, of course, have their core terms and conditions of employment protected by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended).

Sadly, 16 of DGM’s employees will be having their employment terminated by reason of redundancy. Redundancy is a potentially fair reason for dismissal in terms of Section 98(2)(c) of the Employment Rights Act 1996 – assuming that such an exercise has been carried out properly by the employer.

The definition of redundancy is contained in Section 139(1) of the Employment Rights Act 1996:

“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,

have ceased or diminished or are expected to cease or diminish.“

Conclusion

Those former DGM employees unlucky enough to be made redundant are having their contracts terminated. On the other hand, the vast majority of the former DGM employees will maintain their continuity of employment (on their existing terms and conditions) with their new employer. They have a right not to experience any detriments to their terms and conditions of employment as a result of this transfer of an undertaking. Entirely positive changes to their contracts e.g increased pay, holiday entitlement, flexible working arrangements and enhanced family friendly working benefits would be most welcome. In terms of the TUPE Regulations, the new employer has limited scope for implementing negative changes to the employment contracts of the transferred employees. Any attempted changes must be for economic, technical or organisational reasons – not an especially profitable area for employers.

Postscript

Just when you find one story about the implications of TUPE or redundancy, another pops up. Please see a link to a relevant story from BBC Northern Ireland involving the Canadian company, Bombardier:

Bombardier to sell NI operations

The Canadian aircraft manufacturer employs about 3,600 people in Northern Ireland.

Copyright Seán J Crossan, 2 May 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: Section 230 of the 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 2014.

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

Don’t stop the music?

Photo by Radek Grzybowski on Unsplash

The English Court of Appeal has just ruled that an employer was liable for the hearing loss of one of its employees. Nothing unusual about that you might say. The case law dealing with an employer’s duty of care to safeguard the health and well being of employees is full of such examples of life changing injuries.

The relevant case, however, wasn’t about excessive levels of noise in factories or other industrial environments. The case involved a viola player (Christopher Goldscheider) who was employed by the Royal Opera House in London.

Mr Goldscheider alleged that his employer had failed to take reasonable precautions to prevent him from suffering hearing damage during a particularly noisy rehearsal of Richard Wagner’s Die Walküre. The Valkyrie overture can be a particular favourite of audiences, but it is very noisy. The American Director, Francis Ford Coppola made full use of its dramatic effect in his Vietnam war movie, Apocalypse Now.

At the time of the rehearsal of Die Walküre, the sound levels of the music reached a massive 132 decibels. Mr Goldscheider was sitting directly in front of the brass section of the orchestra and took the full force of the music. He later claimed that he had developed acoustic shock and had symptoms of tinnitus, hyperacusis and dizziness.

In its defence, the Royal Opera House claimed that Wagner’s music had artistic merit and that some musicians might foreseeably suffer hearing damage.

This argument was first rejected by the English High Court. The English Court of Appeal affirmed the decision of the High Court: the Royal Opera House had failed in its duty of care to Mr Goldscheider by not taking reasonable precautions to safeguard his hearing.

Don’t stop the music? Well, not exactly, but perhaps turn it down to safer levels might be the lesson to be learned here. Concert halls and opera houses (as well as other noisy entertainment venues) please take note.

Links to the judgements of the High Court and the English Court of Appeal respectively can be found below:

Goldscheider v The Royal Opera House Convent Garden Foundation & Ors [2018] EWHC 687 (QB)

https://www.judiciary.uk/wp-content/uploads/2018/03/goldscheider-v-roh-judgmentL.pdf

Goldscheider v The Royal Opera House Convent Garden Foundation & Ors [2019] EWCA Civ 711

https://www.judiciary.uk/wp-content/uploads/2019/04/goldscheider-v-roh-judgment.pdf

A link to how the case was reported on the BBC News App can be found below:

Royal Opera House loses appeal over viola player’s hearing

The Royal Opera House failed to protect a musician’s hearing during rehearsal, the Court of Appeal rules.

Copyright Seán J Crossan, 19 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