Emoji use at work: the good, the bad and the cringeworthy

I’m known for using the occasional emoji. (For those not in the know, an emoji is the little symbol (normally a little yellow face) which communicates emotion in text and email messages.)

Having just reviewed my “most frequently used” emojis on my iPhone, I can report that my most popular include a penguin (no surprise to those who know me), a horse (to advertise Martin Malone’s recent horse racing-related employment law blog, which can be found here), a bride (due to hitting wedding-planning crisis mode due to my wedding being just 2 months away), an umbrella (for obvious reasons) and a steaming coffee cup (for even more obvious reasons).

In saying this, however, I’ve never actively used emojis at work. Why? I just don’t think they’re very professional. There will be exceptions, such as internal emails to colleagues who you have a close and/or long-term friendship with but, on the whole, I don’t believe many of my clients would expect or require a smiley face at the end of my emails.  I think emoji use creates a real risk of emails being misconstrued and/or considered condescending.

And, rather bizarrely, it appears that science agrees with me. The Social Psychological and Personality Science journal has just published the results of a study focusing on the perception of people who use emojis in work emails. Put simply, the vast majority viewed the senders of emails containing just one emoji as less competent at their job. Is this true in practice?

“Overpromoted” practice manager constructively dismissed following bullying by “brusque and blunt” doctor

As I have pointed out over many years. pursuing a claim for constructive unfair dismissal can be a risky course of action because, for the former employee, it brings with it the added burden of having to demonstrate that the employer’s conduct was so unsatisfactory that it established a fundamental breach of a term of the contract of employment, sufficient for the employee to be entitled to treat the breach as operating to terminate the contract. If there is no fundamental breach then there has been no dismissal, hence, there can be no unfair dismissal.

In the case of Williams v Meddygfa Rhydbach Surgery and Doctors Morris, Haque and Smits, Mrs Williams was the practice manager of a rural surgery operated in partnership by the named doctors. She had commenced work in September 1986 as a receptionist and in 1996 was promoted to practice manager at the Botwnog Pwllheli Surgery. According to the judgment, from 2014 the practice found itself in “challenging circumstances”, both financially and in terms of “difficult interpersonal relationships” between admin and clerical staff on one side and the partners on the other. Numerous complaints were raised and ten members of staff identified Dr Smits’ manner as causing distress. He was described as being “direct, brusque and blunt in his manner”. he was also described as “aggressive” and “irascible”. Employment Judge Ryan found that his management style was “at least robust and was often overbearing and, to the Claimant at least, intimidating”. Accordingly, he found that Mrs Williams’ perception that Dr Smits bullied, harassed and intimidated her was “genuine and reasonable”.

The partners had a generally low opinion of Mrs Wiliams. They thought that she was perhaps promoted beyond her ability and that she was in effect working “at the level of a glorified receptionist”. She was not pro-active or enthusiastic as a manager and she had caused concern when she overpaid a caretaker £12,000.

In June 2014 she was called into a meeting during which her performance was criticised. She was surprised and upset and was told that she was to be subjected to performance management. However, she was not offered training or professional management guidance. She was not set targets or issued with any explicit warnings.

In late 2014 Mrs Williams asked whether she could be made redundant. Her request was refused because the partners were concerned that they might not be able to find a replacement.

A practice manager, Deborah Kalaji, was brought in to conduct a “root and branch review of the practice concentrating on managerial improvement”. By this stage Dr Smits acknowledged that Mrs Williams might claim constructive dismissal.

getting appeals right

In Blackburn v Aldi Stores Ltd the Employment Appeal Tribunal looked at whether a failure to provide an adequate appeal in a grievance procedure could amount to a breach of mutual trust and confidence and thus a constructive dismissal, and concluded that it could.
Mr David Blackburn commenced work with Aldi in 2006 as a light goods vehicle driver. He is a retired police officer and his background was as a vehicle examiner and health and safety trainer. Throughout his employment at Aldi he had concerns about health, safety and training at the depot where he was based. He raised his concerns in particular with Mr Gallivan, the deputy transport manager. It was accepted in evidence that on one occasion Mr Gallivan waved him away, swore at him, said the training was “shit” and told him to “fuck off home”. In fact the depot came out well in audits of vehicle inspection and health and safety.
However there was another flare up with Mr Gallivan in June 2009 and this led to Mr Blackburn raising grievances concerning both Mr Gallivan and a section manager, going back over some time. Normally, under the company’s written procedure, the section manager would have been the person to consider the grievance, but as it concerned him, the next person for it to go to was the logistics manager. But there was no logistics manager – so the regional managing director, Mr Heatherington, dealt with the grievance instead. He met twice with Mr Blackburn, notes were taken and the meetings were recorded. He also spoke with potential witnesses. He reported his findings in detail and upheld the grievance in part. Mr Blackburn was not satisfied and appealed, copying his notice of appeal to the managing director. Remarkably, Mr Heatherington dealt with the appeal himself, holding a brief appeal meeting.
What happened at that meeting was disputed, with Mr Blackburn saying that he was barely permitted to speak and was given a dressing down. Mr Heatherington put forward a rather different version. Mr Blackburn maintains that he was told by Mr Heatherington that his decision was final and he had to accept it. He also alleged that Mr Heatherington had told him that he was anwerable to no-one and that he was in overall charge.
Six days later, Mr Blackburn resigned and started constructive dismissal proceedings. Having started the claim on the basis of a breach of mutual trust and confidence, permission was sought to add an allegation that the grievance procedure had been contractual and there had been a breach of an express term – but this was refused.

a trade union with no members

In Akinosun (on behalf of General & Health Workers Union) v The Certification Officer the Employment Appeal Tribunal (Mr Justice Langstaff – President) upheld the refusal of the Certification Officer to list GAHWU as a trade union (from which follow a number of legal consequences, including the possibility of recognition for collective bargaining). The decision came down to the interpretation of the statutory definition of a trade union.

Section 1 of the Trade Union and Labour Relations Consolidation Act 1992 is headed “Meaning of Trade Union” and states:

In this Act a trade union means an organisation, whether temporary or permanent…which consists wholly or mainly of workers of one or more descriptions and whose principal purposes include the regulation of relations between workers of that description or those descriptions and employers or employers associations…

Section 2 of the Act provides that the Certification Officer must keep a list of trade unions. It is a question of fact whether or not an organisation fits the description of a trade union. It follows that if the purposes of the organisation do not include the regulation of relations between workers and employers then the Certification Officer cannot certify the organisation as a trade union, notwithstanding any declaration which may have been made. Further, a union carries out collective work for its members. Therefore an organisation which exists to provide representation at internal hearings would not, for that reason alone, be a union.

Mr Akinosun and Mr Adelaja were directors of a company called ERRAS Ltd (an acronym for Employment Rights Representation and Advisory Services), which offered representation to health workers, at a fee. No one from ERRAS could accompany workers at grievance or disciplinary hearings – it not being a union – which was a bit of a gap in the service offered. They therefore set up the General and Health Workers Union (GAHWU), with which they shared an office and facilities with the intention, they said, of the administration of the union being taken over by elected officers, once the union had some members.

right to be accompanied by a “reasonable” companion?

It is well known by nearly all employers that their employees have a right to be accompanied at any disciplinary or grievance meeting that they are required to attend, if they reasonably request a companion. However, it still surprises me how often we encounter employers who ignore this and pretty much all other employment rights. Unsurprisingly they tend to be the employers who are least impressed with and most penalised by employment protection legislation and the corresponding employment tribunal system.
The case of Toal & Hughes v GB Oils Ltd does not concern such an employer but does address a question often asked by employers – “do I have a say in who the employee brings along as their companion at a disciplinary / grievance hearing?”. Mr Justice Mitting, sitting in the Employment Appeal Tribunal, has confirmed that although the request for a companion must be reasonable, the companion may be from any of the permitted categories – a paid trade union official, a trained union representative or fellow worker, reasonable or not. Further, if when denied his or her choice of companion, the employee settles for someone else, that does not mean that the employee has waived their right to their choice of companion.
Messrs. Toal and Hughes raised grievances against their employer. Both made it very clear to the employer that they wanted a particular Unite official, Mr Lean, to accompany them at the grievance meetings. The employer was unwilling to allow them to be accompanied by Mr Lean so they arranged for a fellow worker, Mr Hodgkin, to come along instead. They were dissatisfied with the outcome and at the ensuing appeal hearing they were accompanied by Mr Silkstone who, like Mr Lean, was an elected union official.
Complaints were made to an employment tribunal that they had been denied their statutory rights. It was decided that the employer had not acted in breach of the statutory obligation in section 10 of the Employment Rights Act 1996 (right to be accompanied). The tribunal considered whether the word “reasonable” applied to anything other than the request to be accompanied at the hearing. It was contended on behalf of the employer that it also applied to the choice of representative. This contention was rejected. Mr Lean satisfied the criteria for selection as a representative and the legislation provided for a worker to be accompanied by one companion chosen by the worker. The employer was in breach of the legislation by rejecting Mr Lean as the chosen companion.
However, the tribunal then went on to conclude that the breach was waived as a result of the subsequent selection of Mr Hodgkin, commenting that the fact that he was a second choice was “immaterial”.
In the Employment Appeal Tribunal Mr Justice Mitting pointed out that an employee must request to be accompanied at a hearing but also noted that it is widely accepted that good employment practice dictates that an employee should be told that he or she has the right to make the request. He also observed, reasonably, that it is not entirely clear why Parliament included the word “reasonably”. In any event, considered in context, it does not apply to the choice of companion. It is the right of the worker because otherwise an employer might wish to place a worker at a disadvantage by interfering with his or her choice.