An employment tribunal has held that the dismissal of a long-serving employee over derogatory comments she made on Facebook about her employer was fair.
In Plant v API Microelectronics Ltd, the employment tribunal rejected the unfair dismissal claim of a long-serving employee with a clean disciplinary record who was dismissed over comments she made on Facebook about her employer.
Social media misconduct: tribunal’s view:
“The claimant was aware of the policy and one assumes she read it, she must have been aware what was and what was not allowed….
“In the absence of an adequate explanation from the claimant…the respondent was entitled to believe that these comments were aimed at the respondent…
“It may be seen as harsh but the respondents taking account of the claimant’s long service and clear record nevertheless dismissed for a clear breach of the policy and that would fall within the range of a reasonable response open to an employer.”
Mrs Plant had been a machinery operator for her employer for 17 years and there had been no disciplinary issues during that time.
Mrs Plant’s employer introduced a social media policy, which gave examples of unacceptable social media activity, including placing comments online that could damage the reputation of the company.
The company’s social media policy also reminded employees not to rely on Facebook’s privacy settings, as comments can be copied and forwarded on to others without permission.
The policy made clear that breaches of the policy could lead to disciplinary action, including dismissal in serious cases.
A few months later, the company made an announcement about a possible premises move. Shortly after, Mrs Plant made the following comment on her Facebook page, which was linked to her employer’s computer system:
“PMSL [pissing myself laughing] bloody place I need to hurry up and sue them PMSL.”
She was invited to a disciplinary hearing, where her defence was that she did not realise that her Facebook page was linked to her employer’s technology, and that she did not believe that the comment was aimed at the company.
The decision was taken to dismiss. The decision-maker took into account the derogatory nature of the comment, and the absence of an adequate explanation from her.
The decision was upheld on appeal, despite Mrs Plant’s arguments that dismissal was unfair given her long service, clean disciplinary record and lack of computer literacy.
Mrs Plant claimed unfair dismissal in the employment tribunal.
The tribunal held that the employer’s decision to dismiss was within the range of reasonable responses.
Mrs Plant accepted that her comment was in breach of the employer’s social media policy. She did not review her Facebook profile when the policy was introduced, and there was nothing to stop family and friends from forwarding her comment on to a wider audience.
The employment tribunal accepted that the employer had reasonable grounds for believing that Mrs Plant committed misconduct, after a reasonable investigation. Mrs Plant was given the opportunity to provide an adequate explanation, but failed to do so at the disciplinary and appeal hearings.
In rejecting Mrs Plant’s claims for unfair dismissal, the tribunal noted that the decision to dismiss a long-serving employee with a clean record could be seen as harsh.
However, the tribunal concluded that dismissal was still within the band of reasonable responses.
Taken from Original Article by Stephen Simpson 17/05/2017 Personnel Today
Contact EL4U If you need help with workplace Social Media Issues, Policies and Procedures.
An employment tribunal has awarded £25,000 for breach of contract to an apprentice whose contract of apprenticeship, which was due to run for four years, was terminated after less than two years.
Mr Kinnear was employed as an apprentice roof tiler with Marley Eternit. He signed his contract of apprenticeship in October 2014. It was due to run until November 2018.
Mr Kinnear successfully completed his six-month assessment period, and continued to be trained as a roof tiler. However, Mr Kinnear was advised in June 2016 that there had been a downturn in business and that his employment was being terminated on the basis of redundancy. His appeal against dismissal was rejected.
At the time of his dismissal, Mr Kinnear had 122 weeks left to run on his apprenticeship. He would have been paid a minimum of £198.50 per week for the remainder of his apprenticeship. This would have amounted to a total of £24,217.
Mr Kinnear, who could not find another firm with which to complete his apprenticeship, brought a claim for breach of contract in an employment tribunal. Marley Eternit did not enter any defence to the employment tribunal claim.
The employment tribunal held that the company had taken Mr Kinnear on as an apprentice, and that he was entitled to be trained by the company and employed by it until the end of his apprenticeship in November 2018.
According to the tribunal, "no heed was paid by the company to the claimant's particular status in the company".
The tribunal accepted that Mr Kinnear was unlikely to be able to find a replacement employer to complete his apprenticeship, given the downturn in the economy and the "very tailored" nature of his apprenticeship.
In assessing the amount of compensation, the employment tribunal considered that Mr Kinnear had mitigated his loss by looking for another job. The tribunal acknowledged that the lack of a roofing qualification might disadvantage him in the labour market for a number of years to come.
While the employment tribunal did not assess in detail Mr Kinnear's potential future loss of earnings, it accepted that his losses were likely to reach at least £25,000 (the maximum an employment tribunal can award for breach of contract). The tribunal therefore awarded him £25,000 for breach of contract
If you have concerns over apprenticeship arrangements contact EL4U
An employment tribunal held that a long-serving employee was fairly dismissed for making derogatory comments about his colleagues and his employer on Twitter up to three years previously.
Creighton v Together Housing Association Ltd concerns a long-serving employee who was dismissed for making derogatory comments about his colleagues and his employer that he had posted on Twitter up to three years previously.
Mr Creighton began as an engineering apprentice for a housing association in 1987. By 2014, he had worked his way up to lead gas engineer.
During an investigation into alleged bullying of another engineer, his employer discovered that he had made derogatory comments a number of years previously about his colleagues and employer on his open Twitter account.
The employer took disciplinary action against Mr Creighton. Although the bullying allegations were dismissed, the employer dismissed Mr Creighton for gross misconduct over his tweets.
The tweets included a post to two of his colleagues to “just carry on and pick up your wage, this place is f**ked. It’s full of absolute bell ends who ant [sic] got any balls”.
The disciplinary panel dismissed Mr Creighton despite his arguments that:
His appeal against his dismissal was rejected and he brought an employment tribunal claim for unfair dismissal.
The tribunal did not uphold Mr Creighton’s claim.
It accepted that his dismissal was for a potentially fair reason related to his conduct.
His employer was entitled to take action when it discovered that Mr Creighton had made derogatory comments about his employer on a public Twitter account.
Mr Creighton had been given the opportunity to explain the comments but his response had not satisfied the association.
According to the employment tribunal, the age of the tweets did not matter.
Taken from original article by Stephen Simpson Personnel Today
If you need advice in relation to Social Media Policies and Practices at work contact EL4u
A plumber who signed an agreement with his company suggesting that he was self-employed was in fact entitled to some worker rights, according to the Court of Appeal in Pimlico Plumbers Ltd and another v Smith.
The judgment has important implications for so-called “gig economy” employers that claim their workers undertake services on a self-employed basis and that they effectively run their own businesses.
Mr Smith worked as a plumber for Pimlico Plumbers from 2005 until 2011. The agreement between the company and Mr Smith described him as a “self-employed operative”.
The wording of the contract suggested that he was in business on his own account, providing a service to Pimlico Plumbers.
Mr Smith was required under the contract to wear Pimlico’s uniform (which displayed the company’s logo), use a van leased from Pimlico (with a GPS tracker and the company’s logo), and work a minimum number of weekly hours.
However, he could choose when he worked and which jobs he took, was required to provide his own tools and equipment, and handled his own tax and insurance.
There was no express term in the agreement allowing Mr Smith to send someone else to do the work. However, there was evidence that plumbers could swap jobs, described as “more akin to swapping a shift between workers” than substitution.
Pimlico Plumbers did not guarantee to provide Mr Smith with a minimum number of hours. Following the termination of this arrangement, Mr Smith brought claims for unfair dismissal and disability discrimination.
The employment tribunal found that he could not claim unfair dismissal because he was not an employee.
However, the tribunal decided that he could claim disability discrimination as a “worker”, whereby an individual undertakes to do or perform personally any work or services for another party to the contract.
The Employment Appeal Tribunal (EAT) agreed with the employment tribunal, and the Court of Appeal has now dismissed Pimlico Plumbers’ appeal.
In dismissing the appeal, the Court accepted that the original employment tribunal had been entitled to stand back and looked at the arrangement as a whole.
According to the Court, the employment tribunal had been right to regard Mr Smith as “an integral part of Pimlico Plumbers’ operations and subordinate to Pimlico Plumbers”.
The employment tribunal was entitled to regard Pimlico Plumbers as more than just a “client or customer of Mr Smith’s business”.
Unlike recent high-profile judgments involving Uber drivers and CitySprint couriers, this ruling is binding on other courts and tribunals.
This means that the Court of Appeal decision in Pimlico Plumbers Ltd and another v Smith is likely to be a key authority in any forthcoming cases on employment status in the gig economy.
After the ruling, Charlie Mullins, founder and chief of Pimlico Plumbers, said the company had changed contracts with those who worked on a self-employed basis. “Like our plumbing, now our contracts are watertight,” he said.
Glenn Hayes, an employment partner at Irwin Mitchell, said: “We are seeing increasing numbers of individuals challenging their status and claiming to be workers or employees.“CitySprint couriers and Uber drivers recently persuaded separate tribunals that they were workers and although Uber is now appealing this, tribunals are clearly taking a pragmatic and bold approach to determining status cases, despite contractual arrangements which are designed to give the appearance that individuals are genuinely self-employed.
“The outcome of this case is very significant and could make it more difficult for Uber and others to persuade the courts that its drivers are genuinely self-employed.”
Taken from original article by Stephen Simpson of Personnel Today on 10 Feb 2017
Extra legal protection for new and expectant mothers who feel they are being forced out of their jobs is being considered by the government.
A consultation will be launched "in due course" on strengthening the existing law against such discrimination.
The move is in response to last August's recommendations from MPs on the Women and Equalities Committee.
However, the government will not give such women extra time to take their cases to an employment tribunal.
Business Minister Margot James said: "There should be zero tolerance of discrimination against pregnant women, or women who have just given birth. "That's why today we are committing to making sure new and expectant mothers have sufficient protections from redundancy."
Women are reluctant to speak publicly about pregnancy and discrimination in the workplace for fear of being labelled "trouble-makers".
One woman, who declined to be named, was up for partnership at a law firm, but before the interview could take place, she left to have her baby. "When I came back from maternity leave, it was never mentioned again." She left her job.
"Rachel", who worked in public relations, said: "Before I fell pregnant, I had been asking about promotion opportunities, and possibilities were discussed with my manager.
"However, when I became pregnant, these discussions did not seem to progress, despite having the same level of experience and responsibility that other team members had when they received promotions.
"On my return from maternity leave, I raised the issue of promotion again, and was told that if I wanted any hope of promotion, flexible working would make it very difficult
It is against the law to discriminate against a woman because she is pregnant or has recently given birth.
This legal protection should last from when a woman becomes pregnant until the end of her maternity leave.
If you or anyone you know believes they are being treated unfairly because of their pregnancy Contact Employment Law 4u .
Extract above taken from article from the BBC Website. 31/01/2017
A recent tribunal has made clear employers' responsibilities in accommodating breastfeeding mothers.
Employers must ensure that employees who are pregnant, have recently given birth or are breastfeeding are not required to perform any work that could place their health or that of their child at risk.
A risk assessment should be carried out to ensure that the employee has a safe work environment. In addition, as well as requiring employers generally to ensure adequate access to food, water and toilet facilities, the Workplace (Health, Safety and Welfare) Regulations 1992 contain a specific duty to provide suitable rest facilities for pregnant women and breastfeeding mothers. Where necessary this should include somewhere to lie down.
While there is no legal requirement to do so, it is good practice to allow breastfeeding employees access to a private room so they can express and store milk during the day. According to HSE guidance it is not suitable for new mothers to use toilets to express milk. The EHRC Equality Act 2010 Code of Practice also contains guidance on breastfeeding.
If the risk assessment finds a risk the employer is under an obligation to do all that is reasonable to remove or prevent exposure to this. This might involve altering the employee's working conditions or hours of work. If this is not reasonable, or the risk cannot be avoided, the employee must be offered suitable alternative work. If there is no suitable alternative work available, or if the employee reasonably refuses it, the employer must suspend the employee for as long as is necessary to avoid the risk.
In McFarlane and another v easyJet Airline Company the employment tribunal considered the claims of two breastfeeding employees who were cabin crew. They had requested a change to their rota arrangements (which required them to work shifts longer than eight hours) in order to manage the length of time between opportunities to express breast milk. EasyJet rejected the employees' requests. Subsequently the employees had periods of sickness absence and unpaid leave until they were ultimately given temporary ground duties.
The employees put forward evidence that they were at increased risk of mastitis if they were not able to express milk, and produced GP certificates stating that to manage the risk shifts should not be longer than eight hours. EasyJet argued that making the requested changes to the rota would result in the airline being unable to deliver its flying schedule or avoid flight delays and cancellations.
The employment tribunal rejected easyJet's arguments and held that its rota practices were indirectly discriminatory on the grounds of sex. The tribunal also held that in failing to offer the employees alternative work at an earlier stage easyJet had breached the employees' entitlement to be offered suitable alternative work. Furthermore, the tribunal held that the employees were deemed suspended during times they were not offered alternative work and were entitled to be paid during these periods. They also received injury to feelings awards of £8,750 and £12,500, plus interest.
While the decision is not binding, it provides clear legal support for women who wish to continue breastfeeding after returning to work. Employers should therefore ensure that they accommodate requests from breastfeeding employees to express milk. This might involve adjusting rotas or allowing breaks during the working day.
Taken from original article in HR Magazine by Lucy Leonard-Davies an associate at Blake Morgan
A two-year pilot scheme among Gothenburg nurses showed employees felt healthier, which reduced absences, and that patient care improved – but costs were too high.
Sweden’s experiment with a six-hour work day may be doomed after a two-year experiment showed that the costs outweigh the benefits.
The scheme saw 68 nurses at an old people’s home in Gothenburg have their eight-hour days cut in a bid to improve staff satisfaction, health and patient care.
Preliminary results concluded that it achieved all of these aims, but the city had to employ an extra 17 staff, costing 12m kroner (£1.4m), Bloomberg reported.
City officials have decided not to make the scheme permanent because of fears costs could spiral out-of-control.
“It's associated with higher costs, absolutely,” said Daniel Bernmar, a local left-wing politician who has been a leading advocate of the six-hour working day and is responsible for elderly care. “It's far too expensive to carry out a general shortening of working hours within a reasonable time frame.”
Despite the setback, Bernmar is still supportive of the principle of decreased work hours. “I personally believe in shorter working hours as a long-term solution,” he said. “The richer we become, the more we need to take advantage of that wealth in other ways than through a newer car or higher consumption.”
While the public sector may have shunned the idea, at least for now, Sweden’s vibrant tech start-up scene may still be open to it.
Filimundus, an app developer based in the capital Stockholm, introduced the six-hour day last year. “The eight-hour work day is not as effective as one would think,” the company’s chief executive Linus Feldt told Fast Company in October.
“To stay focused on a specific work task for eight hours is a huge challenge. In order to cope, we mix in things and pauses to make the work day more endurable. At the same time, we are having it hard to manage our private life outside of work.”
Attempts to prove the effectiveness of reduced hours have been inconclusive so far. A handful of trials in the 1990s and 2000s were scrapped due to a lack of raw data.
One success has come at Toyota’s Swedish service centre where shifts were cut 13 years ago, sparking an immediate boost to productivity and increased profits. The company has kept the shorter shifts ever since.
Taken from Original Article by Ben Chapman Independant Online 04/01/2017
Do you think the UK should try a 6 hour working day ? Feel free to leave your comments
In Bellman v Northampton Recruitment Ltd  EWHC 3104 (QB) the High Court held that an employer was not vicariously liable for a violent assault on an employee by the employer's managing director at an impromptu drinking session after the Christmas party.
The High Court has held that a company was not vicariously liable for a violent assault by an employee (its managing director) on a colleague at an "impromptu" drinking session straight after the company's Christmas party. The drinks were separate from the Christmas party itself and at a separate location, there were employees' partners and other guests present as well as employees, and the conversation had been largely on non-work-related topics.
Neither the fact that the company was expected to pay for some or all of the drinks, nor the fact that the attack was triggered by a work-related discussion, in which the managing director felt that his authority was being challenged, were sufficient to outweigh the other factors and bring the encounter within the course of his employment. The incident had arisen in the context of "entirely voluntary and personal choices" by those present to engage in a heavy drinking session.
Mr Major was managing director of the Northampton Recruitment Ltd, the defendant. In 2010 he recruited the claimant, Mr Bellman, a childhood friend, as a sales manager.
The company Christmas party in 2011 took place at a golf club. All employees plus their partners were invited, and 24 people in total attended. Following the party, half of the guests, including Mr Major and Mr Bellman, went on to a hotel where some were staying. This was, as the judge described it, an "impromptu drink", not a planned extension of the party. However, since the company paid taxi fares for all party guests, it paid for taxis to the hotel.
The majority of the group continued to drink alcohol and it was expected that the company would pay for at least some of the drinks. The conversation was initially on social topics but by about 2:00 am it turned to work matters. A controversial issue arose concerning whether a recently appointed employee ought to be based at the Northampton office or the Nuneaton office, and Mr Major lost his temper. He began to lecture the employees present on how he owned the company and made the decisions. When Mr Bellman challenged him, in a non-aggressive manner, Mr Major swore at Mr Bellman and punched him. Another employee tried to hold him back but Mr Major broke free and punched Mr Bellman a second time. The second blow knocked Mr Bellman to the floor, fracturing his skull and rendering him unconscious. Later medical reports confirmed severe brain damage and it is unlikely Mr Bellman will work again.
Mr Bellman brought a claim for damages against the company on the basis that it was vicariously liable for Mr Major's conduct. His claim, if successful, would ultimately be met by the company's insurers. No claim was brought against Mr Major as it was believed he would lack the means to satisfy any judgment.
Among the factors pointing away from a finding of vicarious liability was the fact that the assault was committed after, not during, a work social event. A line could be drawn between the Christmas party at the golf club and the "impromptu drink" at the hotel; there was a temporal and substantive difference between the two, and the latter was not a "seamless extension" of the former
The judge also thought it relevant to consider the extent to which the employment relationship was responsible for putting Mr Bellman at risk of injury at the relevant time. Although the provision of alcohol brings with it an increased risk of confrontation, it is customarily provided at Christmas parties and can be safely enjoyed in moderation, and it was notable that the party itself passed without incident. What followed later arose in the context of "entirely voluntary and personal choices" by those present to engage in a heavy drinking session. Even assuming that the company paid for some or most of the eventual bill, any increased risk of confrontation arising from the additional alcohol at the hotel could not properly be treated as supporting a finding of vicarious liability, being so far removed from employment.
An employment tribunal held that a food company employee was fairly dismissed after she refused to do overtime in the run-up to Christmas and complained about being asked to work extra hours, causing discontent among colleagues. Stephen Simpson rounds up recent tribunal decisions.
Fair dismissal of employee who refused to work extra hours before Christmas
In Edwards v Bramble Foods Ltd, the tribunal held that an employer fairly dismissed an employee who refused to do overtime and whose protests at being asked to do so threatened to disrupt the business.
A small food company’s busiest period is the eight weeks from mid-September, when it produces and packs goods such as gifts and hampers for Christmas. Employees’ contracts of employment include a clause requiring them to work extra hours when the business requires.The company decided to formalise its overtime arrangements, which involved asking employees to choose between four and eight Saturday mornings they could work in September and October.
While the rest of the workforce agreed to work some Saturdays, Mrs Edwards refused to work on Saturday mornings.
Management had a number of “informal chats” with her to explain that, by sharing the workload fairly, the company would be able to meet the demands of the Christmas period. Mrs Edwards continued to refuse, stating that she spent Saturday mornings with her husband.
She was dismissed following a number of complaints from colleagues about her behaviour, which included that she had mocked those who had agreed to Saturday overtime (for example by boasting that she would be having a lie in on Saturdays).
A key reason for her dismissal was the employer’s belief that a number of other employees would withdraw their agreement to work overtime if Mrs Edwards was excused.The employer was convinced that her behaviour was having an adverse effect on the workforce and that discontent was spreading. It saw her actions as a growing threat to its ability to fulfil orders.
Mrs Edwards claimed unfair dismissal.
The tribunal accepted that there were a number of minor flaws in the employer’s procedure. Despite this, the employment tribunal had no doubt that dismissal was within the range of reasonable responses. The tribunal found that it was reasonable for the employer to require Mrs Edwards to do some overtime and she had no legitimate reason for refusing.
Taken from original article by Stephen Simpson Personnel Today