Employment Law Newsletter January 2013

Posted: 29/01/2013

Dear Employer
A belated Happy New Year! Made any resolutions yet? You will be reading this newsletter on line via the internet: you may even be one of the lucky ones already to have a 4G phone. The seemingly relentless pace of technological change is presenting real challenges for employers; the impact of social media on the employment relationship is creating issues with which many employers are not sure how to deal. Resolve to make 2013 the year when you tighten up your contracts and workplace policies and increase your ability to limit the damage that your employee could do to your business via social networking. More of this later in this letter.
We thank you for joining us for another year.
Meanwhile, if you have any particular employment issues, please do not hesitate to contact us: details are at the end of this letter. If you have any comments or suggestions on this newsletter, please email newsletter@breezeandwyles.co.uk
Kind regards
The Employment Law Team
Some Recent Cases in Employment Law
Facebook and the employer
Employment Tribunal cases involving disputes surrounding the employee’s use of social media are becoming increasingly frequent. In a recent case, Mr Smith posted a comment on his Facebook page about his views on gay marriage in church. His Facebook page was visible to his “friends” who included work colleagues, some of whom were upset by his comments. The identity of his employer was also visible on the page. He was disciplined for gross misconduct under his employer’s disciplinary policy which included a requirement not to engage in “activities which may bring the Trust into disrepute, either at work or outside work”: the Trust had an Equal Opportunities policy which it considered Mr Smith had breached by his remarks and included an express reference to “any web-based media such as a personal blog, Facebook, U-Tube or other such sites.” The result was that he was demoted from his position and given a final warning. Mr Smith brought a claim for damages alleging breach of his employment contract. He won. The Judge considered that Mr Smith’s Facebook wall was inherently non-work related because, while identifying himself as a Manager at the Trust, he clearly used it for the expression of personal views about matters which had nothing to do with his work. His Facebook was an aspect of his social life outside work and in the same way that a pub etc might have been. Also, although it was not purely private, in that there was a “friends of friends” extension, it was not a medium by which he could or did thrust his views upon his work colleagues, i.e. he had not emailed all their individual addresses. Also, it was his colleagues’ choice, rather than his, to become his friends, and it was mere chance their having become aware of him at work that led them to do so. He was in principle, free to express his religious and political views on his Facebook, provided he acted lawfully, and it was for the recipients to choose whether or not to receive them. The Judge concluded that the prohibition on the promotion of political and religious views in the Trust’s Code of Conduct did not extend to Mr Smith’s Facebook wall and in any event, the posting did not amount to promotion of his views. His Facebook did not have the necessary work-related context to attract that provision of the Trust’s Code of Conduct.
The judgment also made it clear that if an employee is liable to be demoted and have his salary substantially reduced as a result, he must be entitled to ascertain from the codes and policies to which he is subjected what he is and not permitted to do, and to understand the extent to which those obligations extend beyond the workplace and into his personal or social life. This judgment is important because it touches on the difficulty of identifying where the work life ends and the social/private life begins. See “The Employer Traps and Other Tips”. [Smith v Trafford Housing Trust 2012]
Restricting employees after termination
The prudent employer will put restrictive covenants into the employment contract. These can include preventing the employee soliciting business from the ex-employer’s clients after the employee leaves. Case law on the meaning of “solicitation” includes the following:
• “To ask”, “to call for”, “to make a request”, “to petition”, “to persuade” [Sweeney v Astle]
• To contact former clients with the intent of enticing them away [Austin Knight (UK) Ltd v Hinds]. The word “entice” has been described by the Court as to “tempt, lure, persuade, inveigle” [Hydra PLC v Anastasi]
It has also been held that it does not matter who initiates the contact; there is solicitation of a client by a former employee if the former employee in substance conveys a message that he or she is willing to deal with a client and, by whatever means, encourages the client to do so.
It seems clear that there must be at least an approach followed by some sort of encouragement by the ex-employee for solicitation to have taken place.
In the case of Taylor Stuart & Co v Croft the Court held it was acceptable for an employee to provide his contact details (including address) when informing clients of his departure from his ex-employer but it was not acceptable for him to state that he could be contacted at that address. This shows that the encouragement to do business need not be an express one and also demonstrates how thin the line between legitimate activity and unlawful contact can be.
A Christian working on Sundays : not discrimination
The Employment Appeal Tribunal has upheld an Employment Tribunal’s decision that a requirement for all full-time staff to work on Sundays in rotation did not indirectly discriminate against a Christian. The claimant, a Christian, was employed as a children’s care worker and was required to work on Sundays. For two years, her employer accommodated her wish not to work on Sundays due to her Christian beliefs. However, her employer then required her to work as contractually obliged. She refused to do so. She was disciplined and resigned, claiming that making her work on Sundays amounted to indirect discrimination against Christians. The Tribunal found that the employer’s aim of e.g. ensuring an appropriate gender balance on each shift, an appropriate seniority mix etc was legitimate, and that the requirement was a proportionate means of achieving that aim. When she appealed, the EAT dismissed it. [MBA v London Borough of Merton]
What’s in the pipeline
Increase in compensation limits
From 1st February 2013, new rates of compensation will apply as follows:
• Limit on the amount of a week’s pay for the purposes of calculating statutory redundancy payments and basic award for unfair dismissal (amongst other things) will increase from £430 to £450
• The maximum compensatory award for unfair dismissal increases from £72,300 to £74,200
• Guarantee pay increases from £23.50 a day to £24.20
• The minimum basic award in cases where the dismissal was unfair because of health and safety, employee representative and the other statutory reasons will increase from £5300 to £5500
The new rates apply when the event giving rise to the compensation or payment occurs on or after 1st February, for example in unfair dismissal, the rates will apply to all dismissals where the effective date of termination falls on or after this date. Where the dismissal or relevant event falls before 1st February, the old limits will still apply, irrespective of the date on which compensation is awarded.
The Employer Traps and Other Tips
Using social media
The Smith case earlier in this letter emphasizes at least three things:
• Limits on an employer’s ability to police the behaviour of individuals outside the workplace;
• The difficulty in identifying the point at which the work context ends and the personal life begins;
• The need for a proper analysis of whether the behaviour of which you as the employer complains actually comes within the scope of any policy relating to social media
If you as an employer do not have any social media policy in place, or one that is not fit for purpose, then it is going to be extremely difficult to show that an employee was doing something wrong. Difficulties can particularly arise if it is part of your employees’ duties to use social media for work-related purposes (e.g. to write a blog), in which case you should make it clear at the outset that the account and content belongs to the employer and that any accounts (e.g. Twitter) used during employment should not be used after termination.
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