Twitter, Facebook and the like

Posted on June 23, 2011 by Martin Malone

Cases concerning the when and how of employee use of social networking sites (such as Twitter and Facebook) are now beginning to reach the employment tribunals.

No new legal principles are involved in deciding when and whether it is appropriate for an employer to discipline or even dismiss an employee for inappropriate use of these sites. But because the subject is likely to come up with increasing frequency it may be useful to draw attention to a couple of recent cases.

In the first (local) case an employment tribunal found that dismissal was within the band of reasonable responses open to pub chain Wetherspoons after it dismissed a shift manager at one of its pubs in Cheshire because she had posted insalubrious comments about two customers on Facebook. The customers concerned had abused the manager, a Miss Preece, when she was on duty. The abuse had continued afterwards in that Miss Preece was later subjected to anonymous telephone calls, including one in which she was told "get your f*cking P45 ready because you are out of here…". An important factor which led the tribunal to rule that the dismissal was fair was that Miss Preece had signed up to Wetherspoon’s formal email and social media policy which included an explicit statement to the effect that disciplinary action could be taken if any comments on Twitter, Facebook etc. should "be found to lower the reputation of the organisation, staff or customers" (Preece v JD Wetherspoons plc Liverpool ET on 18 January 2011).

However in another case a few weeks earlier an employment tribunal held that dismissal was not within the band of reasonable responses open to the Halfords chain of stores. Halfords had disciplined and then dismissed a deputy manager who had posted negative comments on Facebook. Mr Stephens had set up a Facebook page: "Halfords workers against working 3 out of 4 weekends". He sued for unfair dismissal, won and was awarded £11,350 compensation (Stephens v Halfords plc Torquay ET on 3 November 2010).

In this type of case, as in any "misconduct" unfair dismissal case, an employment tribunal will look at whether the employer went through appropriate procedures and will consider whether or not dismissal fell within the range of reasonable responses open to an employer in all the circumstances (and will not substitute its own view of what would have been reasonable). As many HR practitioners are aware, in carrying out this exercise an tribunal will apply three main tests, as follows:

At the time when he dismissed him, did the employer believe that the employee had been guilty of the misconduct?
Were there reasonable grounds for the belief?
Did the employer carry out as much investigation into the matter as was reasonable in all the circumstances of the case before dismissing the employee?

Subscribers should note that we have added a draft social media policy to the library of downloadable documents in the protected area of our website.

consultation on tribunal reform

Posted on June 23, 2011 by Martin Malone

In February we reported that at the end of January the Government published a consultation paper designed to "improve the way in which workplace disputes are resolved" (the consultation period ended on 20 April).

Proposals for a more active role for ACAS in trying to settle claims before they get to a tribunal have been generally welcomed but other proposals have been criticised by experts in the field, not least one to the effect that employment judges should be able to sit alone in unfair dismissal cases. Hopefully the government will listen to the views of the experts this time around. They failed to do so in 2004, when the last serious attempt to improve dispute resolution processes was made. The embarrassing result was that the compulsory procedures then introduced were removed in their entirety just five years later.

It may be helpful, given other current consultations and proposals, to point out that the January 2011 consultation was concerned simply with dispute resolution. It had little to do with the substance of employment law. The separate May 2011 consultation on “Modern Workplaces” (noted in our other posts this month) deals with that.

In addition to these consultations the government made a quite heavy duty employment law announcement on 11 May. This was picked up by various newspapers which provided headlines such as "Coalition to water down employees’ rights"” (The Guardian) and "Sackings to be made easier and payouts cut in war on red tape" (Daily Telegraph). The Unite Union came out with a snappily titled press release saying "Plans to make a bonfire of employment protection policies need to be extinguished".

For avoidance of confusion, it is worth pointing out that this announcement had little or nothing to do with the January and May formal consultations. Also, it turned out to be something of a damp squib. The "action" part of it merely promises a review of three parts of employment law later this year – the parts in question being (i) the absence of a cap on the amount which employment tribunals can award in discrimination cases; (ii) the 90 day consultation period where collective redundancies are proposed; and (iii) TUPE. The first of these took a knock just this week when a proposal to cap discrimination payments at £50,000 was lost due to lack of Parliamentary time

Given that much of the relevant British law is required by EU Directives it seems unlikely that any radical changes will be made. However it may be that official protestations last autumn to the effect that there were then no proposals to change the TUPE regulations are being modified in the light of the Government’s subsequent commitment not to "gold-plate" EU Directives. One area of "gold-plating" is the service provision part of TUPE. While TUPE itself is designed to implement an EU Directive, this part (reg 3(1)(b)) is not. It has, for example, the effect of making it practically impossible for a local education authority to save money by outsourcing provision of school meals to a catering company which offers staff less generous pensions than the LEA.

The road to hell is, of course, paved with good intentions. While employment law may itself be confusing, plans to simplify it can all too easily make things even more confusing. An important message for both employers and employees to take from all this is that while the detail of how the rules apply may be complicated in some cases, it is still true that as a a general rule common sense and fairness will usually win the day in employment law matters.

consultation on modern workplaces – holidays

Posted on June 23, 2011 by Martin Malone

The Government issued its BIS "Modern Workplaces Consultation" on 16 May 2011 . One of the topics covered is "Working Time Regulations". Consultation closes on 8 August 2011.

The introduction to this part of the consultation explains that the proposals "concern the interaction of annual leave with sick, maternity, adoption, parental, and paternity leave". Changes are necessary to ensure that UK law is consistent with the EU Working Time Directive, as interpreted by the European Court of Justice.

Under British rules the right to annual holiday is generally forfeited to the extent that it is not taken in any particular holiday year – it cannot be carried forward. Judgments of the EU Court of Justice show that in one situation this is unlawful in respect of the basic four weeks’ annual leave required by the Directive. This arises where the worker concerned was unable to take their basic four week annual leave entitlement due to sickness and did not have the opportunity to take it again within the same leave year. EU law requires that a worker in that position should be able to carry forward any untaken part of the basic four weeks’ leave to the next year. Current British law does not provide that right.

The main relevant proposal in the consultation document is therefore to change current British law accordingly. The change will be in respect only of the basic four weeks’ annual leave required by EU law and the employer will be able to insist that the unused leave is taken in the current leave year if there is still an opportunity to do so.

Further related changes will ensure:

that if a worker falls sick during scheduled annual leave he will be able to reschedule the untaken part of the basic four weeks’ annual leave to a later date, including carrying it over if it is not possible to reschedule in the current leave year (the employer will be able to insist that leave that is unused in such circumstances should be taken in the current leave year if there is still an opportunity to do so);
that a worker will be entitled to carry forward to the following year any annual leave (not just the basic four weeks) which is untaken due to absence on maternity, adoption, parental or paternity leave (including additional paternity leave and the proposed new flexible parental leave – see the separate post on this). The consultation document says that the Government is not proposing to extend this to other types of leave.

The Government says, apparently without irony, that "We are aware that businesses will have concerns around the abuse of these provisions". It expresses the belief (hope?) that "employers’ notification procedures for sickness absence" will prevent a worker on annual leave falsely claiming that he was sick so that he can take more annual leave at a later date. The consultation document specifically asks for comments on this aspect.

Consideration ("preliminary thinking") is also being given to other ideas – for example allowing employers to "buy out" annual leave in excess of the basic four week minimum required by the EU Directive or to require the worker to carry that excess over to the following year in any case of "overriding business need".

Importantly, the consultation document confirms that there is no change to the British Government’s opposition to EU proposals to remove the "opt-out" rule (the rule which enables workers to opt-out of the 48 hour average maximum working week limit).

consultation on modern workplaces – flexible working arrangements

Posted on June 23, 2011 by Martin Malone

The Government issued its BIS "Modern Workplaces Consultation" on 16 May 2011. One of the topics covered is "Flexible Working". Consultation closes on 8 August 2011.

The paper gives examples (with explanations) of "flexible work" as follows: part-time; flexi-time; compressed hours; homeworking; annualised hours; term-time working; structured time off in lieu; job-sharing; and varied-hours working / time banking.

The right to have an employee’s request for flexible working taken seriously by employers was introduced in April 2003 for parents of children under six years old, or under 18 if the child has a disability. The employee must have been employed by the employer for at least 26 weeks. The right was extended to certain carers in 2007 and further extended to parents of all children under 17 in 2009. Plans, as an interim measure, to raise the child age limit from 17 to 18 with effect from 6 April 2011 were dropped in February 2011.

As previously announced (see for example Hansard, 29 November 2010) the Coalition Government proposes that the statutory right to request flexible working should be extended to all employees. The current focus on parents and carers is to be removed. However the requirement that the employee should have completed 26 weeks’ employment with the employer will be retained.

The introduction to the part of the consultation which covers "Flexible working" explains that it sets out "proposals to implement the Coalition Agreement commitment to extend the right to request flexible working to all employees". The introduction goes on to say that "We want to stimulate cultural change to make flexible working practices the norm, which we know will require more than just legislation. We will therefore also be developing non-legislative measures to promote flexible working opportunities both for those with a job and for those looking for one".

The right will remain a right to request (not to demand). To reduce administrative burdens on employers, the consultation suggests that the statutory process for considering requests should be removed and replaced with a new duty on employers to consider requests "reasonably", backed by a statutory Code of Practice to clarify what is "reasonable". As the consultation says there will be no change to the eight statutory grounds for refusing a request (set out in the Employment Rights Act 1996 s.80G), it is not very clear what a Code of Practice can add. It may however help if an employer has to choose between competing requests as the proposal is that they should then be allowed to take account of any factors they consider relevant.

The Government recently announced that businesses with fewer than ten employees will be exempt from new domestic regulations until 2014. Subject to any EU requirements, this moratorium will cover the proposed new rules.

Employers who are considering rejecting an employee’s request for flexible working arrangements are strongly advised to contact us. If they reject a request out of hand there is a risk that the employee may resign and claim constructive unfair dismissal. This happened last year, for example, in a case involving a hotel in Newcastle, leading to a tribunal award of over £10,000 to the employee concerned.

consultation on modern workplaces – parental rights

Posted on June 23, 2011 by Martin Malone

The Government issued its BIS "Modern Workplaces Consultation" on 16 May 2011 . One of the topics covered is "Flexible Parental Leave". Consultation closes on 8 August 2011.
In bare outline, the main elements in the “flexible parental leave” part of the proposals are :

Initial leave rights (around the birth/adoption of a child):

Maternity leave to be reduced from the current 52 weeks to 18 weeks (the minimum required by new EU law);
"Flexible parental leave" would be available for the next 34 weeks (i.e. after the 18 weeks’ maternity leave period), shared between the parents as they see fit;
If the parents decide not to share the 34 weeks so that one of them takes it in full, then a further period of "reserved leave" (4 weeks is suggested) will be available to the other (this is social engineering – the government specifically says at para. 48 that this is because it wants to change the "widespread cultural expectation that it should always be the mother who takes time out from work to care for children");
Ordinary paternity leave to remain at 2 weeks;
Fathers also to have the right to time off before the birth to attend a limited number (two is suggested) of pre-natal appointments.

Employers would be able to insist that leave is taken in a continuous period (the consultation paper says that "the process of agreeing when leave is taken is left up to the parties … Where they can not agree, the default position would be for parents to take leave in one continuous block"). It also suggests that there "should be no restriction on parents choosing to take leave concurrently. Allowing only one parent to be out of the workplace at any one time would place unnecessary restraints on how leave may be taken, and interfere with the ability of parent and employer to agree how leave is taken".

Subsequent leave rights

Currently parents who have been employed by their current employer for a year or more are entitled to 13 weeks’ parental leave for each child aged between one and five, Not more than four weeks can be taken in any year and the leave must be in blocks of a full week.

The essence of the proposals is to increase the amount of parental leave from 13 to 18 weeks (this is required by new EU law), to remove the requirement of a year’s employment and possibly to increase the age of the child from 5 to 8, 12, 16 or even 18.

Pay

Currently employed mothers who qualify get statutory maternity pay (SMP) for 39 weeks. They receive 90 per cent of their average earnings, subject, after the first six weeks, to a cap of (currently) £128.73 per week.

Under the new proposals the 18 weeks’ maternity leave and the first 21 weeks of the 34 weeks of flexible parental leave would be paid at 90 percent of average earnings subject to the cap noted above, currently £128.73 per week. There is no mention in the consultation paper of special provision during the first six weeks, as at present. The four weeks’ "reserved leave" noted above would be leave with pay as would the two weeks ordinary paternity leave (as at present).

Other leave (including the father’s right to time off for pre-natal appointments and the right to parental leave after the child’s first birthday) would generally be unpaid.

Finally

The suggestions in the consultation paper are not set in stone. They may well be changed, although no doubt the general thrust of encouraging parents to share in the bringing up of small children will be retained. Concerns have been raised that in practice there will be enormous administrative costs involved, not least in policing, if a new system along the lines suggested in the consultation paper is to be adopted and not abused. Concerns have been expressed by, amongst others, the British Chambers of Commerce (BCC) and the Federation of Small Businesses (FSB).

consecutive bank holidays next year

Posted on May 23, 2011 by Martin Malone

The Royal Wedding last month serves as a timely reminder of the fact that workers have no statutory entitlement to time off on bank or public holidays (yes, technically they are different).

The Daily Mail on 28 April ran an article under the bye-line “Bosses accused of using little-known rule to wriggle out of extra bank holiday payment”. So it seems a subtle distinction which is common knowledge to HR professionals and employment lawyers is perhaps not generally well understood: the basic position is that there is a statutory right to 28 days’ holiday per year but no statutory right to take any of that holiday (with or without pay) on bank or public holidays.

That being said many workers are entitled either to paid leave or to overtime rates of pay on bank and public holidays under the terms of their employment contracts. There may be express contract provisions or there may be implied terms such as customary arrangements which may amount to implied contractual terms.

The basic position, subject to any contractual difference, is that a full time worker is entitled to 28 days’ holiday per year and that any bank or public holidays on which they do not work are included in counting those 28 days. A pro rata calculation, which can be complicated, has to be made for part time workers. It is worth noting that a part time worker who never works on Mondays is not entitled to pro-rata time off (or pay in lieu) in respect of Bank Holidays which always fall on a Monday.

In England and Wales there are six regular bank holidays, New Year’s Day, Easter Monday; the first and last Mondays in May, the last Monday in August and Boxing Day. To these must be added two common law or public holidays, on Good Friday and Christmas Day (if Christmas Day or Boxing Day fall on a Saturday or Sunday the holiday is postponed until the Monday – and Tuesday if necessary).

In Scotland 2 January is an additional bank holiday (or 3 January if the 1st or 2nd is a Sunday) and the first rather the last Monday of August is a bank holiday.

Public holidays can be added by Royal Proclamation, as for the Royal Wedding last month and for the Queen’s Diamond Jubilee on Tuesday 5 June 2012. Although perhaps not yet widely known the Government announced in January 2011 that in 2012 the last Monday of May holiday will be put back a week to Monday 4 June. This will ensure that the Queen’s Jubilee will be an occasion really worth waiting for and a great warm up for the Olympic Games a couple of months later. Or, for others like me, an opportunity to make the most of additional entitlement by getting out of the country for a few days!

TUPE

Posted on May 23, 2011 by Martin Malone

A key element of the TUPE Regulations provides that, where either the new or previous owner of a business dismisses an employee for a reason connected with its sale or transfer, then that dismissal will be automatically unfair. The only way the employer can avoid that result is if he can show that the dismissal is for an “economic, technical or organisation reason involving changes in the workforce”.

So far, so good. However, the owner of a business is quite likely to “tidy it up” with a view to putting it up for sale, and this might include dismissing an employee some time before the business is actually transferred – perhaps, indeed, before a new owner has even been identified. In that situation, is the dismissal really for a reason connected with the transfer and is the employee still protected? It appears that the EAT’s definitive answer to that question is now “yes”.

Two different – and conflicting – lines of authority have previously existed. One required an actual transfer to be in existence (albeit not yet actually taken place) before TUPE’s protection could arise; the other considered that a prospective transferee need not even be in place yet. In Spaceright Europe Ltd v Baillavoine & Anor, (EAT 1 February 2011) the EAT has ruled that the second – more generous – line of authority is the one that should be followed.

A Mr Baillavoine was Chief Executive Officer of Ultralon Holdings Ltd (UHL). Various consultants were appointed over time and reviews of the companies’ viability carried out. In due course, on 23 May 2008, UHL and its subsidiary Ultralon Ltd (UL) went into administration: Mr Baillavoine was dismissed by the administrator. On 25 June 2008 the businesses of UHL & UL were sold to Spaceright – a TUPE transfer. Spaceright was run and owned by those same consultants.

Mr Baillavoine had lost his job, and shares he had in UHL were worthless. He was understandably suspicious, and claimed unfair dismissal. An employment tribunal ruled in favour of Mr Baillavoine. It concluded that he had been dismissed so as to enable a purchaser of the business to acquire the business and assets without his continued employment (his salary of £120,000 might also have presented a problem for a prospective purchaser of the business). His dismissal was therefore automatically unfair unless it could be shown to have been for an “economic, technical or organisation reason involving changes in the workforce” – which it couldn’t.

Spaceright appealed to the EAT but lost. Faced with the conflicting authorities mentioned above, the EAT clearly preferred the latter. It agreed with the original tribunal that TUPE applied even though at the time of Mr Baillavoine’s dismissal the sale of the business which eventually took place had not been agreed. As there was no “economic, technical or organisation reason involving changes in the workforce” for dismissing Mr Baillavoine it therefore followed that his dismissal was automatically unfair.