“Think I just hit a cyclist. But Im [sic] late for work so had to drive off lol.”
Newspapers reported that the author of that tweet was sacked by his employer last month, despite his claim that there was no truth in what he had written and that it was just a bad joke.
Whatever the facts and the rights and wrongs (and as both a cyclist and a stickler for punctuation my opinion is that dismissal was entirely justified), the story is a reminder of the ever-changing challenges facing organisations all over the world, keen to not be tainted by association. The worldwide context is important because any single comment on social media has the potential to go global almost instantly.
One thing is certain in all of this – having a well-worded, well-communicated social media policy is more important than ever. Even if it does not eliminate employees’ misuse of Twitter, Facebook and the like, it will at least put you in a stronger position if you are forced to defend their dismissal.
Out of time at tribunal but claim goes on
Nayif v High Commission of Brunei Darussalam
Claimants have a three-month time limit to notify Acas that they want to bring a discrimination claim in the Employment Tribunal. Some employers will watch the clock tick down and, once those three months have passed, feel pretty safe in the knowledge that they are not going to face a claim.
There is, however, one important fact to bear in mind: the Employment Tribunal is not the only forum for employment-related claims. Some cases can be brought in the County Court or High Court where longer limitation periods apply. That is what has happened here.
Mr Nayif alleged that he had been bullied and harassed at work and he had suffered mental ill-health as a result. The Tribunal dismissed his race discrimination claim because it had been brought well outside the three-month time limit. He went on to issue a personal injury claim in the High Court. The facts of that claim were the same, but this time he alleged negligence and breach of contract.
Could the claim proceed? It was argued that the issues had already been dealt with by the Tribunal – his claim had been dismissed – and so could not be heard again.
The Court of Appeal held that the Tribunal had not decided the issues in the case, only whether or not the claim could be brought. A claim being dismissed by the Tribunal for being brought too late can be distinguished from a claim that has been withdrawn or settled. In this case, Mr Nayif could bring his claim in the High Court.
It is an important principle of justice that litigants cannot “have two bites of the cherry” and the outcome here would likely have been very different if the Tribunal had actually heard the substance of Mr Nayif’s claims before dismissing them. This case serves as a useful reminder that employers are not always “safe” once the relatively short limitation period in the Tribunal has passed.
Fit for Work?
By May this year, we should have a fully-functioning Fit for Work (FFW) service which aims to give clarity on employees’ ability to do their jobs.
Offering free occupational health assessment and return to work plans, FFW will be available to employers and employees as well as GPs, and it looks set to be a useful resource in the case of employees who have been on sick leave for four weeks or more. There will be two elements: a website and telephone line advice service; and a referral service. It is intended to complement, rather than replace, employers’ existing occupational health services and it is important to note that the service is not compulsory, with the employee having to consent to taking part. Time will tell what the take-up is like and how well it will work in practice.
You can access the latest employers’ guidance here:
‘Virtual’ employee retains UK rights
Lodge v (1) Dignity & Choice in Dying and (2) Compassion in Dying
Can an employee who has worked in Australia for four years claim UK employment protection? In some circumstances, yes.
Ms Lodge worked as Head of Finance for the two employers (jointly) in London. It was agreed that, for family reasons, she could move to Australia and continue to work remotely for her employer via the virtual private network. That arrangement worked for four years until Ms Lodge resigned following the rejection of her grievance.
She brought an unfair dismissal and a detriment claim under UK employment law. The tribunal held that she had no right to do so.
The Employment Appeal Tribunal (EAT) disagreed, holding that she had not lost her UK rights. It was relevant that her grievance had been brought under the terms of the company’s handbook and had been handled in London. She had continued to work solely for her employer and, although she had ceased to be employed physically in London, she continued to be a virtual employee from Australia. There was a sufficiently strong link between her employment and the UK.
The case is an important reminder that overseas employees may retain the same rights as those based in the UK. Each will turn on its facts, but the question of a UK connection is crucial to deciding whether or not there is a right to bring a claim in this country. If an employee is working solely for you, and not for a subsidiary or another business overseas, and you are based in the UK then they may well be able to bring a claim here.
Acas Code revised
It may not be the most momentous change in employment law and practice ever, but a change has been made to the Acas Code which affects the way employers should handle workers’ requests to be accompanied at disciplinary or grievance hearings.
It is in response to Toal v GB Oils, in which the Employment Appeal Tribunal held that in relation to disciplinaries and grievances, where a worker “reasonably requests to be accompanied at the hearing”, there is no reasonableness requirement relating to the identity of their companion. In other words, a worker does not need to be reasonable in choosing the person they would like to attend the meeting with them – they can choose someone who the employer considers to be a troublemaker or who the employer might not want to attend for some other (ostensibly legitimate) reason.
The Toal case found that workers have the right to be accompanied by any companion from one of the categories in section 10 of the Employment Relations Act 1999 (trade union officials, certified union reps and fellow workers). That, it seems, is now the only requirement. This was a surprising outcome at the time and remains so now. Acas is of course only reflecting the current state of the law but nonetheless unless and until it changes, employers should be aware of this when carrying out grievance and disciplinary procedures. Note that failure properly to follow the Acas code can give rise to an uplift in compensation of up to 25% if a claim is subsequently brought successfully.
Appeal decision effective when made
Salmon v Castlebeck Care and Danshell Healthcare
Fishy goings-on relating to dismissal before a transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). Ms Salmon was dismissed before a TUPE transfer. The HR Director of the incoming employer, Danshell, heard her appeal and decided, post-transfer, that the dismissal was unsafe. However, she did not tell anyone about this – including Ms Salmon – or decide to reinstate Ms Salmon. Instead she instructed Danshell’s retained HR consultants to negotiate a settlement – but for reasons that are unclear, that did not happen.
Could Ms Salmon bring a claim against the new employer? The Tribunal held that she could not; as transferee, Danshell had never become her employer.
Ms Salmon appealed, arguing that because her appeal against dismissal had been successful, that had the effect of instantly reviving her contract. It meant, she said, that she had actually been employed “immediately before the transfer” (the relevant test under TUPE) and so her employment transferred to Danshell as part of the TUPE transfer. This mean, she argued, that she could claim against Danshell.
The Employment Appeal Tribunal agreed. The employment contract had been revived. There was no need for an express decision as to reinstatement to be taken, or for the appeal decision to be communicated. Once an appeal against dismissal has been upheld, and unless the employment contract says otherwise, employment is automatically revived.
The point about a contract being automatically revived is an interesting one, at least for technically-minded employment practitioners. Ms Salmon’s employment contract was revived on the appeal against her dismissal being successful, even though, no one (other than the HR Director) knew about it. Compare this with a decision to dismiss an employee, which is only effective when it is communicated to the employee.
Place of work redundancy
EXOL Lubricants v Birch
The claimants were delivery drivers. They lived near in Manchester but their depot was in Wednesbury. EXOL arranged secure parking for their HGVs in Stockport near the drivers’ homes because of the cost to them of commuting. This became a term of their contract, which also said that their place of work was the depot in Wednesbury. Time spent travelling between Stockport and Wednesbury was treated as part of their working day.
EXOL gave notice to terminate the secure parking arrangement when it decided it was no longer affordable. The employees were unable to agree a compromise with EXOL and were dismissed. EXOL argued that these were fair redundancy dismissals, claiming that Stockport was the employees’ place of work and its requirement for lorry-driving there had diminished. The employer had ceased to carry on business in the place in which the employees were employed.
The tribunal found for the claimants. It held that their place of work was the depot in Wednesbury and not the place where they parked their HGVs.
The Employment Appeal Tribunal (EAT) agreed. Wednesbury was the correct place of work. The claimants had a close connection with the depot. That is where they had to take their lorries every day; it was where their instructions came from and to where they reported. There was no redundancy at the depot and so their dismissals were unfair.
This case raises important points about the meaning of “place of work” in cases involving mobile workers including delivery drivers. In deciding where their place of work is, the first port of call is the contract, then the connection held between the employee and their depot or head office.
Another (and dare we say, better) option in this case would have been for the employer to justify the dismissals by reason of “some other substantial reason”, based on the employer and employees having been unable to agree a new arrangement. The EAT commented that, had that route been taken in this case, other considerations may have applied.