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GAME v Laws

The two questions this week are;

1. When an employee TUPE transfers to a new company is the new employer liable for any ongoing harassment issues/claims?
The question this week is

Are employee’s personal social media accounts capable of bringing an employer’s reputation into disrepute?

This is the first EAT case involving Twitter. The Respondent, GAME, has over 300 stores in the UK. Mr Laws, the Claimant, was employed as a risk and loss prevention investigator and was in charge of monitoring around 100 stores in the North East.

Ironically, part of his job was to monitor the individual Twitter accounts of the individual stores to make sure no inappropriate content was posted. To do this, the Claimant set up his own Twitter profile and followed the 100 stores, 65 of which followed him back.

One of these stores then reported the Claimant for tweets he had posted which were offensive, intimidating, racist and discriminating. These included remarks made about; dentists, caravan drivers, golfers, the A&E department, Newcastle United supporters, the police and disabled people. While many of these characteristics clearly aren’t protected under the Equality Act the latter most definitely is!

After investigation, the Claimant was dismissed, despite not directly affiliating his Twitter account to the Respondent. The public nature of Twitter meant potential customers and GAME employees could easily see the offensive content he posted.
Despite admitting to posting the tweets the Claimant took this case to tribunal. The tribunal found that, despite his inappropriate conduct, the Claimant’s dismissal was an unreasonable response as the Twitter account was not directly linked to the Respondent, all posts were made outside of work time on a device not belonging to the company and were not definitely seen by any employees or customers other than the one who reported it.

The Respondent appealed this decision on the grounds that the tribunal had substituted its own view for that of a reasonable respondent. The EAT found that despite not affiliating himself to Game, the Claimant, who was followed by colleagues, had made no effort to keep his posts private from colleagues or potential customers. Upholding the Respondent’s appeal that the Tribunal had substituted its own view, the case was referred back to a different tribunal.

The lessons to be learned here are clear
1.       Employees need to make sure that privacy settings are used on social media accounts to prevent colleagues or clients from seeing posts.
2.       Just because an employee does not tweet something offensive about the employer it can still be inappropriate or damaging to the employer’s reputation, in fact it could infringe the bullying and harassment policy.
3.       Social media can be a grey area for both employers and employees. If the Respondent in this case had a clear Social Media policy ( emma@pjhlaw.co.uk?subject=Social Media Policy ) they may have prevented a tribunal, appeal and subsequent tribunal. If you do not already have one then maybe it is time to put one in place. Training employees how to use social media is also an option.
2. Is it fair to treat employees engaging in an office affair differently because of their gender?

The Claimant, Ms Vernon, was employed by Port Vale FC as a sales manager but was TUPE transferred to Azure Services Ltd. Azure provided a range of services for Port Vale FC and the Claimant’s place of work did not change.

Before the transfer she had been sexually harassed by a colleague (Mr Bedding) who was not TUPE transferred, but still worked in close proximity with her. The allegations of harassment include Mr Bedding referring to her as a “bitch”, frequently pestering her for dates, requesting she wear low cut tops and saying she was “too attractive to work in football”.

Rumours then started circulating that the Claimant was having an affair with a player for Port Vale FC, something that all employees of both Port Vale and Azure were forbidden from doing. The Claimant was suspended whilst an investigation was carried out and when confronted by her line manager the Claimant said that all rumours were false but did disclose that the football player had written his name on her car.

The Claimant returned to work. The investigation could not find conclusive evidence of any affair between the Claimant and the player. However, she later told her manager that the player in question had followed her on her day off, contacted her on Facebook, exchanged texts with the Claimant and also gone to her house.
The manager felt holding back this information had breached their trust and she was sacked for her communications with the player and jeopardizing Azure’s contract with Port Vale. The Claimant appealed to be reinstated but was unsuccessful so the case went to Tribunal.

By this time Mr Bedding had left Port Vale and Port Vale had gone into administration so Azure were the sole Respondent at court. The Tribunal found that:

1. The harassment issues did not TUPE over to Azure

2. The Claimant was dismissed due to her sex which was discriminatory

The Claimant appealed the first finding and Azure appealed the latter. The EAT accepted the Claimant’s appeal finding the continuous nature of the harassment and the close proximity that her and Mr Bedding worked meant despite the Claimant’s TUPE to Azure they were ultimately liable to protect her from harassment at work.
The EAT rejected Azure’s appeal as it found that the Claimant was discriminated against and dismissed due to her gender. It cited the different treatment the player received in comparison to the Claimant as well as comparing how a similar situation involving two male employees might have been handled as reasoning for its decision.

The lesson for employers is:

1. A TUPE transfer will not stop the clock on harassment claims when employees TUPE over to your company but still work closely with former colleagues who have not transferred. Make sure any ongoing issues such as harassment, bullying etc are resolved.

2. Set clear guidelines for employee relations (office romances) and make sure that if employees breach these rules then they are both treated equally.

Posted: Mar 2, 2015 by admin in Employment Tribunal

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Vernon v Port Vale Football Club, Azure & Bedding

The two questions this week are;

1. When an employee TUPE transfers to a new company is the new employer liable for any ongoing harassment issues/claims?

2. Is it fair to treat employees engaging in an office affair differently because of their gender?

The Claimant, Ms Vernon, was employed by Port Vale FC as a sales manager but was TUPE transferred to Azure Services Ltd. Azure provided a range of services for Port Vale FC and the Claimant’s place of work did not change.

Before the transfer she had been sexually harassed by a colleague (Mr Bedding) who was not TUPE transferred, but still worked in close proximity with her. The allegations of harassment include Mr Bedding referring to her as a “bitch”, frequently pestering her for dates, requesting she wear low cut tops and saying she was “too attractive to work in football”.

Rumours then started circulating that the Claimant was having an affair with a player for Port Vale FC, something that all employees of both Port Vale and Azure were forbidden from doing. The Claimant was suspended whilst an investigation was carried out and when confronted by her line manager the Claimant said that all rumours were false but did disclose that the football player had written his name on her car.

The Claimant returned to work. The investigation could not find conclusive evidence of any affair between the Claimant and the player. However, she later told her manager that the player in question had followed her on her day off, contacted her on Facebook, exchanged texts with the Claimant and also gone to her house.
The manager felt holding back this information had breached their trust and she was sacked for her communications with the player and jeopardizing Azure’s contract with Port Vale. The Claimant appealed to be reinstated but was unsuccessful so the case went to Tribunal.

By this time Mr Bedding had left Port Vale and Port Vale had gone into administration so Azure were the sole Respondent at court. The Tribunal found that:

1. The harassment issues did not TUPE over to Azure

2. The Claimant was dismissed due to her sex which was discriminatory

The Claimant appealed the first finding and Azure appealed the latter. The EAT accepted the Claimant’s appeal finding the continuous nature of the harassment and the close proximity that her and Mr Bedding worked meant despite the Claimant’s TUPE to Azure they were ultimately liable to protect her from harassment at work.
The EAT rejected Azure’s appeal as it found that the Claimant was discriminated against and dismissed due to her gender. It cited the different treatment the player received in comparison to the Claimant as well as comparing how a similar situation involving two male employees might have been handled as reasoning for its decision.

The lesson for employers is:

1. A TUPE transfer will not stop the clock on harassment claims when employees TUPE over to your company but still work closely with former colleagues who have not transferred. Make sure any ongoing issues such as harassment, bullying etc are resolved.

2. Set clear guidelines for employee relations (office romances) and make sure that if employees breach these rules then they are both treated equally.

Posted: Mar 2, 2015 by admin in Employment Tribunal, TUPE

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Insley V Accent Catering

This is the first Tribunal decision involving e-cigarettes in the workplace.

E-cigarettes are a bit of a hazy issue for employers so we hope this week’s case will clear the air a little.

The question this week is whether being suspended for smoking an e-cigarette amounts to constructive dismissal?

Ms Insley, the Claimant, was employed by Accent Catering, the Respondent, as a Catering Assistant for a secondary school.

The head teacher caught the Claimant smoking an e-cigarette on school grounds in front of pupils. He reported this to the Respondent and said he believed the Claimant’s actions amounted to gross misconduct.

The Claimant was suspended for bringing the Respondent’s reputation into disrepute and was invited to a disciplinary hearing to decide whether her actions justified dismissal. The Claimant resigned before the hearing could take place and then claimed constructive dismissal.

As the Claimant was never formally dismissed or indeed disciplined the tribunal had to decide whether the Respondent’s actions had breached the terms of the Claimant’s contract. The tribunal ruled in favour of the Respondent however it also stated after examining the Respondent’s smoking policy that the Claimant’s actions did not amount to gross misconduct.

This was due to the smoking policy being based on the Health Act 2006 which only covers tobacco cigarettes. E-cigarettes are vapour based and are not covered by the Act. The Tribunal highlighted its concern as it believed that the Claimant had not breached this policy even if her conduct had been inappropriate. Had the Claimant been dismissed a claim for unfair dismissal could have gone in her favour.

The lesson here for employers is simple, have a clear smoking policy that covers e-cigarettes!

The take away point for employees is that it is almost always better to be pushed than to jump.

E-cigarettes are not covered by the Health Act and in 2016 they could be prescribed as a medicine to help smokers give up, so now is the time to act! A clear policy on smoking and e-smoking will give employers a firm leg to stand on should any breaches arise.

Posted: Mar 2, 2015 by admin in Employment Tribunal

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Liakopoulou v Christie Hospital NHS Foundation Trust

I have tweaked.

Liakopoulou v Christie Hospital NHS Foundation Trust

In light of recent events involving Chelsea and West Ham fans on trains this week we would like to highlight a recent case of the week we published involving gross misconduct outside of work time.

This week’s case also involves gross misconduct.

The question this week is:

Should employers consider mitigation and not dismiss an employee for a gross misconduct offence?

The Claimant was employed as a consultant doctor by the Respondent from 2003 to 2010. In 2009 a patient reported that they had been pressured by the Claimant to participate in a medical trial. The patient claimed that the Claimant would be more likely to consider the patient for a transplant if they agreed to participate.

Around this time it also came to light that the Claimant had lied about her qualifications on her CV, medical papers submitted and on the Respondent’s website. The Respondent dismissed the Claimant for gross misconduct and after the Claimant’s appeal to be reinstated was dismissed the case was bought before the Tribunal.

One of the Claimant’s main arguments was that the Respondent had not taken into account her reasonable length of service and good record prior to these incidents. The Claimant argued these as grounds to mitigate her dismissal for gross misconduct down to less serious disciplinary action.

Despite evidence to the contrary the Tribunal found that mitigation had not been properly considered by the Respondent. The Tribunal believed the incident involving qualifications was not gross misconduct and that pressuring patients to participate in medical trials should have been mitigated by the Claimant’s service record.

The Respondent appealed the decision on the grounds that the Tribunal had substituted its own views for that of the Respondent. The EAT upheld the appeal. The EAT held that the Claimant’s actions did amount to gross misconduct and that the nature of the conduct amounted to a serious breach in trust which meant mitigation was not possible, something the employer had argued at the previous Tribunal.

The lesson for employers is:

In disciplinary proceedings always take into account evidence such as service record, length of service and attitude as grounds for mitigation.

Any letter sent to the employee following the disciplinary process should clearly identify the points considered in mitigation and fully explain the reasons for the lesser sanction being imposed. Likewise if the mitigation points are rejected be sure to explain why.

When looking to employ highly qualified staff make sure that that forged or inaccurate qualifications is classified as gross misconduct in the disciplinary hearing.

Posted: Mar 2, 2015 by admin in Employment Tribunal

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The Cabinet Re-shuffle and Employment Law

This Cabinet reshuffle is interesting from an employment law perspective.

The casualties so far are:

Dominic Grieve (Attorney General)

The Rt Hon Kenneth Clarke QC MP (Minister without Portfolio)
The Rt Hon David Willetts MP (Minister of State, BIS)
The Rt Hon Alan Duncan MP (Minister of State, DFID)
The Rt Hon Hugh Robertson MP (Minister of State, FCO)
The Rt Hon Sir George Young Bt MP, (Chief Whip and Parliamentary Secretary to the Treasury)
The Rt Hon Andrew Robathan MP (Minister of State, Northern Ireland Office)
The Rt Hon Gregory Barker MP (Minister of State, DECC).

 

To borrow a phrase once used by a HR Director at a well known PLC, the victims of the re-shuffle appear to be mainly “male, pale and stale.”

 

Those achieving advancement and promotion appear not to fit that description.

220px-NickyH&SJan10 esther-mcvey-img Liz Truss is to become environment secretary

 

With the re-shuffle widely being trumpeted as Cameron’s way of appealing to the female demographic where his support is low, the re-shuffle and the way it has been spun does appear to be at the very least an interesting take on the Equality Act 2010 where positive discrimination is only permitted in certain prescribed circumstances around genuine occupational requirements.There is always a fine line between addressing discrimination where it exists by promoting and recruiting under-represented groups and actively discriminating against the advantaged groups-here men.

It’s not an easy issue to tackle. There are still vast swathes of public and private life  (eg Board Directors at PLC) where female participation is low. It is remarkable that in an advanced democracy we have had one female prime minister and no prime ministers from a BME background.

A more gender balanced executive can only be a good thing and let’s hope a more diverse cabinet brings with it a more diverse range of viewpoints and experiences. Not everyone may agree – has this re-shuffle crossed the line? Should positive discrimination be allowed? Has David Cameron cynically sought electoral advantage or boldly addressed an inequality? Have your say below the line.

 

Posted: Jul 15, 2014 by admin in Unfair Dismissal

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Cognitive biases and employment law:

The full list of cognitive biases is here

A cognitive bias is a tendency to think in the same way. Lawyers and Judges have to be very alert to the possibility of cognitive biases affecting their day to day work and judgment.

Reading through the list so many of the biases can impact.

Loss aversion bias might be part of the explanation for the dramatic drop in employment tribunal claims – the prospect of an immediate but temporary loss of £250.00 outweighs the prospect of future gains.

The planning fallacy is particularly important when drafting High Court Precedent H forms.

When summing up it is vital that some rhyme is injected into the submissions to ensure that the client potentially benefits from the Employment Judge having the keats heuristic cognitive bias.

When faced with a client carrying a lever arch full of papers detailing extensive grievances against his employer, the tendency you have to guard against is to think back to previous cases and then use them as a starting point for the one in front of you.

Every single case is different and unique and that should be the lawyer’s starting point.

Coming to a preliminary conclusion without having immersed and absorbed the detail can be dangerous as given the potential of confirmation bias a subsequent immersion into the detail may lead you to seize on evidence that supports the preliminary conclusion whilst eliding detail that does not support that conclusion.

Obviously when advising we need to be aware of the curse of knowledge bias which Solicitors and our friends at the bar sometimes suffer.

When negotiating we need to be aware of the anchoring effect which then sets the bar for the negotiation.

Looking through the lists of biases can you see any others which could impact the Employment lawyer’s day to day work? let us know in the comments.

 

 

 

 

Posted: Jul 2, 2014 by admin in Unfair Dismissal

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Constructive dismissal – all in good time?

It’s trite law that, in order to bring a successful constructive dismissal claim, the resignation must be in response to the breach.  It is therefore imperative that employees do not delay in resigning.  In the EAT case of Mr Chindove v Morrisons the Claimant resigned 6 weeks after the alleged breach.  The ET held that this was too late for the Claimant to be entitled to accept the breach.  The EAT held this decision was in error, namely because no reasons were given by the ET for this decision and, crucially, had there been reasons these should have considered the fact the Claimant was off sick at the time and this issue of delay has to be considered differently where an employee is not actively working.

The lesson for employers?  A 6 week delay in resigning may be sufficient lapse of time to sound the death knell for a constructive dismissal claim but not necessarily so, particularly if this period includes time absent from work.

Posted: Jun 20, 2014 by Olivia in Unfair Dismissal

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Some other substantial reason dismissal

Hot off the EAT press.  A dismissal of the Claimant for refusing to agree to a rescheduling of her working hours (due to operational need to change the office rota) was a dismissal for SOSR (The Cornerstone Practice v Mrs Crockford)

Posted: May 16, 2014 by Olivia in Unfair Dismissal

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Where there’s an Interested Party ………

there is usually a juicy case and that is no exception in the EAT case of Innospec Ltd and Others v Mr Walker with the Interested Party being the Secretary of State for Work and Pensions.

This is a recently reported EAT sexual orientation discrimination case regarding occupational pensions.  Mr Walker succeeded in his claim at Tribunal on the grounds that a pension scheme which provided survivor’s benefits to spouses but not to those in a civil partnership, insofar as those benefits derived from service prior to the day the Civil Partnership Act 2004 came into force (5 Dec 2005) was discriminatory.

The ET accepted that the Equality Act 2010 appeared to permit this but held those provisions incompatible with European law.  The ET said that civil partners should, therefore, benefit from service at the time before it was unlawful to discriminate on grounds of sexual orientation.

The EAT held the ET was wrong to hold the provisions incompatible and even if it hadn’t been wrong could not have properly interpreted the provisions.  No wonder the DWP were interested …………

 

Posted: Mar 27, 2014 by Olivia in Employment Tribunal

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Bribery Act e-learning

Both employers and employees can face serious penalties for breach of the Bribery Act. Employers can be made to pay an unlimited fine and employees can even go to prison! PJH Law’s Bribery Act e-learning trains employees on their responsibilities under the Bribery Act with a view to raise awareness of what amounts to a bribe and what the potential penalties for bribery are. The course will also help employers establish a defence to prosecution for breach of the Bribery Act – if an employer can demonstrate it has adequate procedures in place to prevent Bribery, it will not be fined.

For only £79 plus VAT per month with unlimited users, PJH Law can provide employers with Bribery Act training as part of its Virtual Arm service. ARM will monitor which employees have passed the course and report to the employer if any employees fail to take or fail to pass the course.

Also included in the £79 plus VAT per month is PJH Law’s learner management system pre-loaded with online learning on Dignity at Work, Display Screen Equipment, Social Media, Computer Use, Manual Handling and more.

If you’d like to know more call Philip or Liam on 01780 757589 or 08448 505805.

Posted: Mar 25, 2014 by liam in E Learning

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