Forwarding pornographic emails at work Leeds to loss of 12 months’ notice

A former Director of Leeds United Football Club has failed in an action for wrongful dismissal (Williams v Leeds United Football Club).  Mr Williams’ contract provided for a salary of £200,000 per annum and a 12 month notice period.  He was given notice of redundancy.  However, one week into the notice period he was summarily dismissed for gross misconduct.  The employer had instructed forensic investigators to review their email system with a view to finding a basis for a gross misconduct dismissal.  This was done with the intention of avoiding the substantial notice payment.

The investigation uncovered an email which Mr Williams had sent more than 5 years earlier.  The email contained pornographic material which he had forwarded to two former colleagues and also to a junior female colleague.  Leeds commenced a disciplinary procedure and Mr Williams was dismissed in his absence when he failed to attend the disciplinary hearing.  Leeds refused to pay the £200k notice pay.

The High Court in London dismissed his notice pay claim.  Leeds were entitled to dismiss Mr Williams without notice in the circumstances.  The senior nature of his position, combined with the fact that the lewd nature of the images could have amounted to harassment of a female colleague, resulted in a breach of trust and confidence.    His conduct amounted to a repudiatory breach of contract.  The Court was not moved by the employee’s argument that the delay of over 5 years meant that he had not breached trust and confidence – Leeds acted when they became aware of the breach.  Also irrelevant was the fact that the employer was actively seeking material to justify dismissal and avoid paying notice.

Jack Boyle
Senior Solicitor – Employment Law
@EmpLawyerJack
www.blackadders.co.uk       

Jimmy no Mates: TUPE and Organised Grouping of Employees

The circumstances in which a service provision takes place under the TUPE Regulations 2006 (“TUPE”) include where party A is appointed to undertake activities on behalf of a client which had previously been undertaken by party B on behalf of the client.  This captures the classic situation where there is a change of contractor.  An employee seeking TUPE protection must establish that they formed part of an organised grouping of employees which had as its principal purpose the carrying out of the activities concerned on behalf of the client.

In Rynda (UK) Ltd v Rhijnsburger, the Court of Appeal faced the question of whether a single employee could satisfy the organised grouping test in circumstances where that employee had been instructed by her employer to carry out all of the activities necessary to provide the services to the client.

The employee was responsible for managing the Dutch properties within an asset fund.  She had no other duties and worked full time managing the Dutch properties without any assistance.  The Court summarised the approach to be taken in service provision cases as follows:-

  • Identify the service that party B was providing to the client
  • List the activities performed by the staff of party B in order to provide that service
  • Identify the employee or employees who performed those activities
  • Consider whether party B organised that employee or those employees into a “grouping” for the principal purpose of carrying out the activities.

The Court held that the employment tribunal and the EAT had applied the correct test in finding that the employee did constitute an organised grouping.

Previous cases were distinguished on the facts.  In particular, Eddie Stobart Ltd v Moreman was distinguished on the basis that there was a positive decision on the part of the employer in the Rynda (UK) Ltd case which resulted in the employee working exclusively on the Dutch properties.  By way of explanation, the EAT held in Eddie Stobart that employees were not an organised grouping in circumstances where the assignment of employees to the particular activities was as a result of unplanned circumstances, namely shift patterns.

Jack Boyle
Senior Solicitor – Employment Law
@EmpLawyerJack
www.blackadders.co.uk

Changes to statutory redundancy pay and others from 6 April 2015

From 6 April 2015, the annual increase in compensation limits will apply.

Compensatory award at tribunal

An employee who successfully demonstrates that he or she has been unfairly dismissed is entitled to claim a compensatory award.  From 6 April 2015, the maximum compensatory award at tribunal will increase to 52 weeks’ pay or £78,335 (previously £76,574), whichever is lower.

A week’s pay

The maximum for a week’s pay will increase to £475 (previously £464) from 6 April 2015.

Why does it matter to employers?

Whilst I would hope that, even if you are faced with a tribunal, any potential award would be substantially lower than the statutory cap, it is important to note the increase in a week’s pay for redundancy payment calculations.  Redundancy pay is based on age, length of service and weekly pay, capped at the appropriate rate.

The Government has a helpful online calculator which can also be used, where appropriate.

https://www.gov.uk/calculate-your-redundancy-pay

You should be taking steps now to ensure that the appropriate person is aware of the proposed changes to these statutory caps.

Andrew Wallace
Trainee Solicitor – Employment Law
@EmpLawyerAndy
www.blackadders.co.uk

Zero-hours = Zero bonus?

Recent reports have suggested that a large number of workers have potential claims against sports retailer Sports Direct in respect of their exclusion from the company’s bonus scheme.

The bonus scheme paid out approximately £160 million worth of shares to eligible permanent staff in 2013.  However, the vast majority of the company’s staff are employed under zero-hours contracts and were not paid any bonuses.  Many of these workers have written to the company via their legal representatives highlighting their claims.

This report once again brings zero-hours contracts into the news following Vince Cable’s announcement late last year that the use of zero hours contracts was to be reviewed.

Notwithstanding their critics, zero-hours contracts remain widely used in the UK.  It is important to remember than those employed under such contracts will likely qualify as part-time workers.  The Part-time Workers (Prevention of Less Favourable Treatment) Regs 2000 render it unlawful for an employer to treat part-time workers less favourably than comparable full-time workers regarding the terms of their contract.  This could potentially include the exclusion of part-time workers from a bonus scheme.

Jack Boyle
Senior Solicitor – Employment Law
@EmpLawyerJack
www.blackadders.co.uk

Establishing the meaning of ‘establishment’ in redundancies

Collective Redundancies

There are currently three cases to be heard by the Court of Justice of the European Union (“CJEU”) on the issue of what constitutes an ‘establishment’ for the purposes of collective redundancies. UK law currently provides that when 20 or more employees are to be made redundant within a period of 90 days at one establishment, they must be consulted collectively beforehand. Consulting collectively is generally more burdensome and onerous than consulting individually. It requires the employer to consult with the employees, or any representatives at the same time. The process must begin 30 days before the intended redundancies are planned to take place (45 days if there are more than 99 staff being made redundant). The Secretary of State for Business, Innovation and Skills also needs to be notified as part of the consultation. The process takes longer and employees can make claims for protective awards of up to 90 days’ pay if the employer fails to collectively consult.

Question of establishment

There has been much discussion recently as to what exactly constitutes an ‘establishment’. Does an establishment refer to each individual place of work? Or does the European interpretation of establishment enforce consideration of all redundancies across a company within a 90 day period (ie all redundancies across all of the offices/units of work). Clearly the distinction has a great impact procedurally and financially on employers.

Advocate General’s opinion

The Advocate General has given his opinion on the matter. He has opined that, “the ‘establishment’ is the unit to which the redundant employees are assigned to carry out their duties and it is not necessary to aggregate the dismissals across all of an employer’s establishments”. This would imply that an employer need only consider collective consultation when there are 20 or more redundancies made at the same unit of work – a relief for employers.

It is important to note that the Advocate General’s opinion is often used as a recommendation to the CJEU and is in fact often implemented by the court. However until the CJEU delivers its judgment, the opinion is not legally binding. At this stage it is a good indicator on which way the court is likely to lean.

Advice

When employers are being forced to look at multiple redundancies, always bear in mind the potential requirement to collectively consult with the employees (as opposed to individual consultation). Carrying out the correct procedure will prevent unwanted claims. For now it would appear that the interpretation of an establishment is in favour of one particular unit of work. This would be favourable for the employer. However it is still not guaranteed to be implemented by the CJEU. Keep an eye out for its awaited judgment – this will provide final clarity on the matter.

Andrew Wallace
Trainee Solicitor – Employment Law
@EmpLawyerAndy
www.blackadders.co.uk

Fit for Work Service

The new Fit for Work Service was launched in Lanarkshire, Tayside and Lothian on 26 January 2015. The service is aimed to make it easier for employees to return to work after periods of extended absence. It is expected that other health board areas will be joining the service shortly.

The System

Referral

The system aims to provide a quick and free passage back into employment for an absent employee. Any employee in paid employment who has been absent for 4 weeks or more will be eligible for the service. After an employee has been absent for 4 weeks they can be referred to the scheme by their GP. If the GP does not refer the employee, this can be done by the employer. Any referral will need the explicit consent of the employee.

Assessment

Once a referral has been made, a professionally qualified clinician will contact the employee. Consultation will normally be carried out by telephone. The employee will receive a phonecall within 2 working days. If the employee would prefer a face to face consultation, this will usually be done within 5 working days.

Back to Work Plan

The assessment will look at any barriers that may prevent the employee from returning to work and come up with a plan to counteract them. Employers will not have to implement any plans suggested to them by the assigned clinician, however the employer may be eligible for a tax free exemption of £500 if adjustments to the workplace or duties are required.

Access to Work

It is important to note that the current Access to Work scheme will continue to function. This is a scheme which offers grants to help employees with a disability, mental health or health issues begin or stay in work. Access to Work grants may be more appropriate for an employee who requires further adjustments.

For more information on the Fit for Work Service please visit www.fitforworkscotland.scot

Andrew Wallace
Trainee Solicitor – Employment Law
@EmpLawyerAndy
www.blackadders.co.uk

Shared Parental Leave and Pay – Part 3: Practicalities

The previous instalment in this series discussed the notice and booking requirements for taking shared parental leave and pay.  We looked at the requirements of booking notices and highlighted that an employee is restricted to a maximum of three booking notices/variations.

How much shared leave is available? 

The starting point is the full 52 weeks of statutory maternity leave (“SML”).  Deduct from this however much leave the mother has taken before she curtails her SML.  The remaining balance is available to be taken as shared leave between the parents/partners.

How can this be divided up amongst parents?

Shared leave can only be taken in blocks of full weeks.  The minimum period which can be taken is 7 days.  Parents can either take leave in separate blocks or they can take leave at the same time.  The system offers a lot more flexibility for employees and arguably a lot more hassle for employers.

Within the limit of three booking notices, employees can apply for either continuous or discontinuous blocks of leave.  Employees have an absolute right to take shared leave in continuous blocks.  Thus an employee who asks to take 4 consecutive months as shared leave cannot be refused (regardless of the needs of the business).

Slightly different rules apply in relation to requests for discontinuous blocks of leave.  For example, an employee seeking to take two weeks’ leave followed by a month at work and then a further two weeks’ leave.  Employers have 14 days from receipt of such a request within which to consider it.  Employers can refuse, or propose alternative arrangements.  Where the employer refuses, the default position allows the employee to simply take the total period of leave requested in a continuous block.  The employee has five days following the employer’s refusal to confirm the start date for the leave (which cannot be earlier than 8 weeks after the original booking notice).  Alternatively, the employee can, no later than the 15th day after the original booking notice was given, opt to withdraw the notice.  A withdrawal in this case means that the original booking notice does not count towards the cap of three notices.

What should employers be doing now?

It remains to be seen how popular the new system will be.  However employers should be taking the following steps now:

  1. Update existing maternity/paternity procedures
  2. Develop a shared parental leave policy and circulate this to the workforce
  3. Get to grips with the notice requirements and consider drafting internal style notices.
  4. Engage with employees over discontinuous leave requests in an attempt to find a workable solution for both parties.

Although it is beyond the scope of this overview, it is worth noting that employers who offer enhanced maternity pay to mothers would potentially be committing unlawful discrimination if they do not offer similar enhanced rates to any partners who are taking shared leave.  Review your existing contracts.  Take advice about the statutory provisions on discrimination and the requirements of your business.

Jack Boyle
Senior Solicitor – Employment Law
@EmpLawyerJack
www.blackadders.co.uk

Combat The Troll In Your Workplace: Social Media Issues for Employers

Troll: an ugly, cave-dwelling creature depicted as either a giant or a dwarf

Troll (internet): one who posts a deliberately provocative message on a social media forum with the intention of causing maximum disruption and argument

The terms “troll”, “trolling” and “trolled” are being increasingly used in the media.  More frequently these terms relate to the latter definition above (although the recent Hobbit trilogy has perhaps caused some confusion given its reference to the former).  In any case, employers should be aware of the existence of any “trolls” within the workplace and, where appropriate, should be educating staff and taking action in relation to such issues.

Why should employers care about trolls in the workplace?

Increasing use of social media by individuals has resulted in some high profile employment tribunal cases.  An employer can be held vicariously liable for harassment or “trolling” which is caused by one of its employees.  This means that any employee who has been subject to unwanted conduct within the course of employment by a “troll” colleague could raise a claim against his or her employer.  This situation could arise even when the employer is unaware of the troll’s existence or online activity.

How can employers combat these trolls?

Employers should, as a minimum, take three steps to protect against such issues:

  • Create clear guidelines: If not already in existence, employers should create a social media policy.  This policy should address what use of social media is not permitted, at what times social media sites can be accessed by employees, whether commenting about the employer is permitted, whether such sites can be used for business development purposes and, if so, who is in charge.  Employers should also ensure that staff handbooks include examples of social media-related misconduct within the definition of gross misconduct.
  • Take disciplinary action, where appropriate: Employers who discover any social media misuse which has an impact on the workplace should take appropriate action against the offending trolls.  Employers who historically turn a blind eye to social media misconduct will be criticised by an employment tribunal for taking action in the future.
  • Be consistent: Employers should avoid a knee jerk reaction when responding to social media misconduct.  Instead employers should treat each incident on a case by case basis however should take into account the following factors when deciding what disciplinary action (if any) is appropriate:- whether the employer has a social media policy in place; the nature and seriousness of the alleged misuse; any previous warnings for similar misconduct; actual or potential damage caused to customer or client relationships.

Trolls can be deadly to their opponents.  Internet trolls can be costly for their employer.

If in doubt about internet trolls, employers should take legal advice.  Every employment lawyer will confirm that it is far cheaper to take pre-emptive legal advice about such issues before disciplinary action rather than to resort to reactive legal advice after dismissal when faced with an employment tribunal claim.

Unfortunately Blackadders is unable to give any useful advice about other type of trolls.

Simon Allison
Partner – Employment Law
@EmpLawyerSimon
www.blackadders.co.uk

Shared Parental Leave and Pay – Part 2: Notice and Booking Requirements

Following on from the first blog in this series, I now consider the notice requirements which an employee must give to engage their rights under the new system of shared parental leave and pay.  There are three main stages of notification under the new procedure, which I will address in turn.

Mother must curtail

Eligibility for shared leave and/or pay only arises where the mother cuts short, or ‘curtails’, her statutory maternity leave (“SML”) and/or statutory maternity pay/maternity allowance.  A mother can curtail her SML either by simply returning to work (and giving the employer 8 weeks’ notice), or by giving her employer a leave curtailment notice.  A leave curtailment notice must be given in writing, 8 weeks in advance of the proposed curtailment date (i.e. the date on which it is proposed that SML will end).  It must specify the date on which the mother proposes to end her SML and must also be accompanied by either a notice of entitlement or a declaration of consent and entitlement (which is basically a declaration by the mother confirming that the father has given a notice of entitlement to his employer).  Similarly, the mother must curtail her entitlement to SMP or maternity allowance by serving notice on the person who pays her (be that the employer or the Secretary of State).

Notice of entitlement

A person who is eligible for and intends to take a period of shared leave must submit a notice of entitlement to their employer.  This must be done in writing, 8 weeks in advance of the proposed start date of any shared leave.  The notice of entitlement must include the following:-

  • Names of mother and father (or partner/spouse/civil partner)
  • Start and end dates of any periods of SML taken, or to be taken, by the mother
  • The expected week of childbirth
  • The date of birth of the child (if this has not yet occurred, it must be provided as soon as is reasonably practicable)
  • The total amount of shared parental leave available
  • How much shared leave the mother and father intend to take
  • A non-binding indication of the dates on which the employee giving the notice proposes to take shared leave

The notice of entitlement must also include signed declarations by both the employee and his or her partner/spouse/civil partner.   Similar notices and declarations are required for confirming notice of entitlement to shared parental pay.

Booking notices

The third type of notice required is a booking notice.  This is required where the employee wishes to actually book a specific block of leave (as opposed to merely notifying the employer of their entitlement).  Whereas the dates given on a notice of entitlement are not binding, the booking notice is where dates to become binding.  A booking notice must again be in writing and must be given 8 weeks in advance of the period of leave which is being ‘booked’.  Booking notices can be given at the same time as the notice of entitlement, or after.

Importantly, an employee is restricted to a cap of three booking notices.  Once an employee has committed to a period of shared leave, it is binding.  However, there is a mechanism whereby employees can submit notice of variation (to change the dates).  It is important to note that an employee must give at least 8 weeks’ notice to vary any booked leave.  Any variation notice counts towards the cap of three booking notices.  Therefore employees can only chop and change dates so many times.

The final part of the series will cover some of the practicalities arising from the new system, including how leave can be divided up.

Jack Boyle
Senior Solicitor – Employment Law
@EmpLawyerJack
www.blackadders.co.uk