A blog on blogging based on a blogging blog

Right, so I like a good blog on employment law-related topics and, in this blog, I’m looking to blog about employee blogging, even if those blogs are about blogs (or not blogs at all). Clear? Of course not, the only near guaranteed thing is that, by now, the word ‘blog’ has probably started to lose meaning in that way that words do when constantly repeated.

On a slightly more serious side, this article is about what happens when an employee publishes content (whether on social media, within physical media (including a local or national newspaper) or within personal blogs) that potentially harms the reputation of their employer. Where is the line drawn between innocent, harmless blog and, on the other hand, an online article or post that seriously harms the business of an employer?

As per the above title, I briefly covered this topic around 4 years ago in a past blog post. That article mentioned the rather quirky case of Walters v Asda Stores, heard in 2008, in which a manager jokingly (I hope!) posted a message stating that, whilst she was supposed to love her customers, hitting them with a pickaxe would make her much happier… The Employment Tribunal found that Asda had focused too much on the mere fact she was a Manager rather than considering other factors (such as, I would image, how many people would have seen the post, would those people have actually thought she was being serious and/or would people really judge Asda for staff members occasionally making slightly inappropriate jokey remarks outside work) and ruled that the dismissal was unfair.

Employment Law: A study of Peanuts

I’ve just passed two years’ service here at Canter Levin & Berg and, during that time, if my colleagues were asked to describe my obvious passions in two words, those words would be probably be ‘penguins’ and ‘Snoopy’. That wouldn’t be surprising considering that my office contains a Snoopy resting on his doghouse, penguin figurines and numerous colleagues regularly receive Snoopy pictures within internal emails…

From time-to-time, I use hypothetical examples to demonstrate employment law principles and solutions and, within blogs, I tend to slip in the odd character from the Peanuts universe. Fun fact? The creator of Peanuts had the title fostered upon him by newspaper editors and hated it to such an extent that when asked about Peanuts he always referred to it as ‘that comic with Charlie Brown and his dog’.

From time-to-time, I use hypothetical examples to demonstrate employment law principles and solutions and, within blogs, I tend to slip in the odd character from the Peanuts universe. Fun fact? The creator of Peanuts had the title fostered upon him by newspaper editors and hated it to such an extent that when asked about Peanuts he always referred to it as ‘that comic with Charlie Brown and his dog’.

Gross negligence: Apollo 11 back down to Earth?

It’s official. I’m a fully signed up member of Sky TV. I get to indulge in the football, my wife gets US dramas and we both get the F1. My family’s view? That we’ve ‘gone posh’… Yes, Sky TV is viewed with incredulous eyes within our family clan.

Why do I suddenly sound like a satellite TV salesman? Well, recently, on a whim, I recorded a program about the 1969 moon landing on the TV, which was excellent and marked the 50 year anniversary of Apollo 11’s landing on the moon. One of the most fascinating aspects of the show concerned interviews with NASA engineers who knew that one incorrect/flawed part on the shuttle could lead to mission failure and/or the deaths of the astronauts in front of the watching world. In fact, such were the risks that President Nixon had a printed speech ready in the event the astronauts died.

What does this have to do with employment law? Well, unbeknown to some, it is possible to dismiss a member of staff for ‘gross negligence’ and, being an employment law aficionado, the programme set me to thinking about this little-used reason for dismissal.>

You’re fired? – Trump v UK Ambassador row

Another week, another news story related to Donald Trump albeit, this time, definitely not ‘fake news’. In summary, an unknown individual leaked a diplomatic cable from Sir Kim Darroch, the UK Ambassador to the USA, in which Sir Kim called President Trump “insecure” and “incompetent”.

Following this, and without an absence of irony, President Trump then demonstrated that alleged insecurity by announcing that his administration would no longer speak with Sir Kim and, long story cut short, Sir Kim resigned his position.

Rather than focus on the political side of things, this story is interesting because it reflects a common fear of many employers, namely an employee leaking highly confidential information to hurt them. In this case, it is very likely that a civil service or staff member leaked the information to hurt Sir Kim’s position (and, in that sense, they were ultimately successful!)

Let’s have a quick look at the employment law impact of a similar situation. So, within our hypothetical example, we have Rule Britannia Mugs Ltd, who sell British branded mugs to other countries. Their biggest customer is White House Trading PLC in the USA, who love mugs displaying pictures of red telephone boxes, London buses and union flags! However, an employee leaks an email from the Finance Director within which the Director states ‘we needn’t worry about quality, Americans will buy any old tat’ and it becomes viral on social media. What happens next?

Can a long-term sickness employee become practically unsackable?

The Employment Appeal Tribunal (EAT) have recently held an employee to hold ‘an implied right not to be dismissed’ when on long-term sick leave.

Naturally, this has caused many employees great concern
because long-term sickness absence, in itself, is usually fair reason to
consider dismissal.  Whilst there can be
various factors at play, including any potential disability of the employee,
the principle of an individual having to be present at work to fulfil their job
role (and employment) remains.

So what happened in the recent case of ICTS (UK) Limited v Mr A Visram to cause such concern?

Well, let’s set the scene briefly, Mr Visram was
contractually entitled to sickness benefit payments (termed ‘Long Term
Disability Benefits’) during any period of continuous sickness absence from
employment whilst he remained an employee. 
But, for various reasons, the insurer and employer didn’t wish to pay
them and, in doing so, Mr Visram was dismissed on grounds of sickness absence
and so ended his entitlement to contractual Long Term Disability Benefits payments
by the insurer (as the policy required his continued employment).

Was Ryanair’s dismissal of staff a bumpy landing?

It’s fair to say that Ryanair aren’t strangers to controversy.  Whether it be their pricing strategy, public statements or otherwise, they seem to attract publicity for many reasons, whether good or bad.

Given their nature for publicity, it was perhaps predictable that the media (and social media) would seemingly target Ryanair for dismissing six staff members photographed sleeping on the floor of a crewroom in a Spanish airport.  Indeed, on the face of it, it seems bizarre to punish staff who were ‘forced’ to sleep on the floor.

However, as with most situations, there is more to the story than the headline would suggest and, dig a bit deeper, and it seems that Ryanair may actually have had legal grounds for dismissing the six staff members for Gross Misconduct based on the publicised facts.

Now, as a starting point, naturally, you can’t dismiss staff for sleeping on a floor.  That would be ludicrous and completely unfair.  But, in this case, that isn’t why Ryanair dismissed their staff members.

So, why did Ryanair sack them?  What’s the big difference?  Well, put simply, Ryanair believe that the staff members ‘staged’ the photograph and did so with a view to damaging their reputation.  And, whilst people are perhaps inclined to automatically distrust the public statements of big companies in situations like this (and, instead, support the ‘underdog’), it appears that Ryanair has a point.

How can anyone judge this?  Well, put simply, because Ryanair published a CCTV video online showing the staff standing or sitting around and then appearing to agree to the taking of a photograph.  All the staff members then move over and arrange themselves in a close formation on the floor before an individual takes a photograph of them lying on the floor (which they weren’t doing before).

Can there still be a TUPE transfer after a gap of five months?

The European Court (CJEU) decision in Jorge Siguenza v Ayuntamiento de Valladolid concerns the potential application of a transfer of undertaking (TUPE transfer in the UK) in a case in which there is a long gap between one undertaking ceasing its activities and another commencing. Mr Siguenza was employed as a music teacher at the Municipal Music School of Valladolid in Spain from November 1996. From 1997 to 2013 management of the school was provided by a contractor, Musicos y Escuela, on behalf of the local authority. In 2012-13, owing to a reduction in the number of pupils, the authority refused to pay the sums claimed under the contract by Musicos y Escuela, which therefore sought the termination of the contract and claimed damages. In response, in August 2013, the authority terminated the contract, alleging wrongful conduct by Musicos y Escuela because it had ceased its activities before the end of the contractual end date. In a series of judgments delivered in 2014 and 2015 the Tribunal Superior determined that the authority had breached the contract because it was committed to providing guaranteed payments irrespective of the number of students, so that failure to make those payments in full had caused the breach of contract.

In the meantime, in March 2013, Musicos y Escuela started consultations with a view to the dismissal of all its staff. Mr Siguenza and his fellow employees were dismissed on 4 April and the company was declared insolvent on 30 July.

In August 2013 the authority assigned the management of the school to In-pulso Musical and provided it with the use of the premises, instruments and equipment necessary for it to carry out its duties. In-pulso Musical commenced its management of the school in September 2013 for the 2013-14 school year and was awarded further contracts for 2014-15 and 2015-16.

Unfair dismissal claims by the former employees failed but Mr Siguenza brought a further claim before the social court. His claim was dismissed on the basis of res judicata (the matter had already been determined by the other court) and he appealed to the high court. In doing so, he contended that there had been a transfer of undertaking from Musicos y Escuela to In-pulso Musical so that his contract of employment should have been preserved. It was this aspect of his claim that was transferred to the CJEU.

Is it fair to dismiss for action which falls short of gross misconduct?

It is well known that dismissal can result from a single matter which is usually found to amount to gross misconduct, or as the result of more than one event, with the prior matters resulting in written warnings and/or a final written warning. Indeed, most disciplinary procedures outline this process and generally include examples of what will normally be treated as gross misconduct.

However, in Quintiles Commercial UK v Barongo the question for the Employment Appeal Tribunal (EAT) was whether it was fair for Quintiles to dismiss Mr Barongo for conduct which was initially classified as gross misconduct but subsequently downgraded to serious misconduct.

Quintiles supplies staff for pharmaceutical companies. Mr Barongo started working for them in October 2012 and was latterly engaged to sell drugs for Astra Zeneca. On 5 January 2016 he was dismissed on notice on two grounds. First, he had failed complete Astra Zeneca’s compliance training course by the deadline of 3 November 2015 and, second, failing to attend their compulsory training course on 19 November 2015. Mr Barongo did not deny the allegations and he also accepted that they amounted to misconduct on his part. However, he contended that he had been dealing with other matters. He said that he had not intentionally failed to engage with the training but he had chosen to priorities other matters. This had been at a time when he was on a performance improvement plan.

There was a disciplinary hearing conducted with his line manager which took place by telephone. As the EAT pointed out, conducting the hearing by phone might not have been best practice but it was not in itself unfair. His line manager concluded that the duty of trust and confidence which ought to exist between employer and employee had been broken and, as a result, Mr Barongo was dismissed on notice, for gross misconduct.

He appealed against the decision and the appeal was heard by one of the employer’s directors, Mr Athey, who took the view that there had been a breach of the duty of trust and confidence, but that it amounted to serious rather than gross misconduct.

Mr Barongo submitted a claim of unfair dismissal to the Employment Tribunal. The Tribunal took the view that the downgrading of the misconduct from gross to serious was highly significant:

How to deal with convictions for sexual offences committed by a person associated with the employee

Judgments of the Supreme Court concerning employment law issues are fairly infrequent and usually worthy of attention. That is certainly so in the recent case of Reilly v Sandwell Metropolitan Borough Council which concerned an individual convicted of the surprisingly common offence of downloading indecent images of children.

Ms Reilly was the deputy head teacher of a primary school. She was in a close but not sexual relationship with a Mr Selwood and they did not live together. In 2003 they bought a property in joint names as an investment and Mr Selwood lived there, although he did not make any payments to Ms Reilly. Ms Reilly did not live there but she occasionally stayed overnight, including on 24 February 2009 when, the following morning, she awoke to the arrival of the police who searched the property and arrested Mr Selwood on suspicion of having downloaded indecent images of children. In September Ms Reilly was promoted to the post of head teacher at the school and in February 2010 Mr Selwood was convicted of making indecent images of children by downloading. On a scale of 1-5, the images ranged from level 1 to level 4. He was sentenced to a three year community order, made the subject of a sexual offences prevention order (which included a ban on him having unsupervised access to minors) and he was required to take part in a sex offenders’ programme.

Ms Reilly was immediately aware of the conviction and sentence but chose not to disclose them to the school governors or the local authority. In June 2010 the authority became aware of the conviction and she was suspended on full pay. She was required to attend a disciplinary hearing, the allegation being that, in failing to disclose her relationship with a man convicted of sexual offences concerning children, she had committed a serious breach of an implied term of her contract of employment, sufficient to warrant dismissal for gross misconduct. Following a hearing in May 2011 she was summarily dismissed. The panel was particularly concerned that Ms Reilly continued to refuse to accept that her continued association with Mr Selwood might pose a risk to children at the school. Her appeal against her dismissal failed.