Articles | Employment bulletin September 2015

This month we look at an employee’s freedom to choose their disciplinary companion, the dangers of a misjudged Facebook status and the rights of agency workers.

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David Clay

David Clay

FSP Employment Seminars

25 November 2015 & 19 January 2016

FSP Employment Seminars

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Join us at one of our two upcoming employment seminars held in conjunction with the CIPD.

On 25 November 2015 we are running a witness examination event.  Louise Smyth will lead the session, focusing on the key points to be aware of if you or your colleagues are called to give evidence in the employment tribunal.  The session is designed to be interactive and will feature a mock cross-examination led by Leslie Millin, a barrister at Ely Chambers in Henley.  Read more to book your place.  

On 19 January 2016 it’s the return of our popular New Year seminar focusing on recent and forthcoming changes in employment law.  Ian Machray will provide practical guidance on what the changes mean for employers and HR professionals and will identify key action points for the forthcoming year.  Read more to book your place.

Companions at disciplinary meetings

Should employees be given more choice?

Companions at disciplinary meetings

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The ACAS Code of Practice on disciplinary and grievance procedures specifies that employers should allow all employees to be accompanied at a formal disciplinary or grievance meeting by a colleague or trade union representative.  A recent High Court case considered an employer’s response where an employee asked to be accompanied by a person outside these two categories.

The case concerned Professor Stevens, a clinical academic at Birmingham University.  After suspending Professor Stevens amid very serious allegations of misconduct, the University invited him to attend an investigatory meeting, explaining that he could be accompanied by a colleague or trade union representative.  Professor Stevens was not part of a union and the nature of the allegations meant no suitable colleague was available.  Professor Stevens asked to be accompanied by a representative of MPS, a medical defence organisation which enjoys a close relationship with the BMA (the doctors’ union).  The University refused this request on the grounds that it was not permitted by Professor Stevens’ contract or its disciplinary policy, and departing from the policy would open the floodgates to similar requests.

The High Court found there was no reasonable or proper cause for the University’s conduct.  Taking into account the potentially career-ending nature of the allegations, the absence of a suitable colleague or union representative and the fact that the investigating officer and witnesses involved had all been allowed companions, the University’s refusal to allow Professor Stevens to be accompanied by an MPS representative was a breach of the implied term of trust and confidence between the parties.

Although based on an unusual set of facts, the decision shows that courts and tribunals will expect employers to demonstrate flexibility in exceptional circumstances.  A request to be accompanied by someone other than a colleague or trade union representative should always be assessed on its own merits.  As a failure to allow a particular companion could render any subsequent dismissal unfair, it is important for employers to weigh up whether the reasons for rejecting a request outweigh the potential risks involved.

Social media sorrow

Can you fairly dismiss an employee for Facebook comments?

Social media sorrow

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To bring about a fair dismissal for misconduct, an employer must hold a genuine belief that an employee is guilty of misconduct, have reasonable grounds for that belief, and have carried out a reasonable investigation.  In a recent case the Employment Appeal Tribunal (EAT) has looked at whether this test also applies to misconduct involving comments on Facebook.

The case concerned Mr Smith, a maintenance worker for the British Waterways Board (BW).  Mr Smith was unhappy with aspects of his work and raised various grievances.  Ahead of a meeting to discuss these grievances, one of Mr Smith’s managers provided details of historical comments posted by Mr Smith on his publicly viewable personal Facebook account.  Some remarks criticised his bosses while another indicated he was drinking while on ‘standby’.  Although it had known about some of the comments for months without taking action, BW instigated disciplinary proceedings and dismissed Mr Smith for gross misconduct.  It found that the comment concerning drinking could undermine the confidence of colleagues and the public in Mr Smith’s ability to respond to an emergency and that Mr Smith had breached its policy banning internet posts which might discredit BW.

Mr Smith appealed the decision, arguing he had never drunk while on standby and that the comment about drinking was simply ‘banter’.  He also stated that BW could not be clearly identified from his comments as he had not used his employer’s full name.  The appeal was rejected and Mr Smith brought a claim for unfair dismissal.

The EAT held that the decision to dismiss was fair.  It reiterated its recent finding in a case involving Twitter (read more) that social media cases should be dealt with in the same way as any other misconduct.  BW had followed a fair procedure, had taken into account mitigating factors and had reached a decision within the band of reasonable responses available to it.

This decision shows that failing to respond to instances of misconduct contemporaneously does not always prevent an employer from taking disciplinary action at a later stage.  However, employers should avoid delays wherever possible; prolonged inaction could mean any breach of contract is seen as accepted and the opportunity to discipline or dismiss is lost.  The best approach to handling social media related misconduct is timely enforcement of a disciplinary procedure or a social media policy which specifically identifies examples of social media activities that will constitute misconduct or gross misconduct.


Internal recruitment

Do you have to interview your agency staff for vacant posts?

Internal recruitment

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All agency workers have the right to be informed of vacancies at the company where they are working.  However, in a recent case before the Employment Appeal Tribunal (EAT) an agency worker at the Ministry of Defence (MoD) claimed that he also had the right to be considered for vacancies as an equal alongside permanent employees.

The agency worker, Mr Coles, worked as a technical liaison officer.  In 2013 the MoD underwent a substantial restructure and placed 530 employees into a redeployment pool, to be given priority consideration for any vacancies.  In May 2013 the work carried out by Mr Coles was advertised as a vacant post.  The advertisement was visible to all internal staff, including Mr Coles.  An employee in the redeployment pool applied for and was given the role and the MoD told Mr Coles his assignment would soon terminate.

Mr Coles brought claims based on the wording of the Agency Worker Regulations and the Temporary Workers Directive.  He argued that he was treated less favourably than the MoD’s permanent employees and that this breached the Regulations, which stipulate that agency workers must be given information about vacancies so that they have the “same opportunity...to find permanent employment” as employees at the company where they work.

The EAT clarified that the concept of equal treatment for agency workers is limited to enjoyment of the same working time and pay conditions as permanent employees. Unlike fixed-term or part-time workers, agency workers have no general right not to be treated less favourably than permanent employees.  The wording “same opportunity” in the Regulations referred only to providing information about vacancies in a similar form and at a similar time.  The MoD was free to redeploy a permanent employee at risk of redundancy without offering Mr Coles an interview or a chance to apply for ‘his’ role.

The decision exposes the limited nature of the rights of agency workers.  The EAT’s judgment is good news for employers, and especially those who rely on agency staff.  Employers who currently engage agency staff or are considering doing so should ensure they are fully apprised of their obligations to those workers.  While employees have far greater protection, agency workers still have important rights such as protection against discrimination, paid holidays and rest breaks.

Do employees on long-term sick leave transfer under TUPE?

EAT offers useful guidance

Do employees on long-term sick leave transfer under TUPE?

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Where a company outsources, insources or changes its service provider it needs to consider if the affected employees will be protected under the TUPE Regulations.  If TUPE does apply and an employee is assigned to the contract that is affected, their employment will automatically transfer to the incoming service provider.  The issue of whether an employee is assigned to the organised grouping of employees who carry out the service is accordingly crucial as to whether they automatically transfer.

In a recent case the Employment Appeal Tribunal (EAT) was asked to decide whether an employee on long-term sick leave transferred under TUPE or remained with his original employer.

Mr Edwards was employed as an Engineer for BTMS.  He was a member of a team dedicated to providing maintenance services for mobile phone networks.  Due to various illnesses, Mr Edwards did not attend work after January 2008 but remained “on the books” of BTMS so that he could receive benefits under a permanent health insurance (PHI) scheme. When his PHI benefits expired, Mr Edwards continued to receive payments from BTMS.

In December 2012 the maintenance contract was transferred to Ericsson. BTMS argued that Mr Edwards was assigned to that contract and had transferred under TUPE; Ericsson argued that Mr Edwards was not assigned, as required by TUPE, due to his long-term sickness and he remained employed by BTMS.

The EAT noted that Mr Edwards was permanently incapacitated and there was no prospect of him ever returning to work.  It held that for a person to be assigned to an organised grouping of employees for the purposes of automatic transfer under TUPE, a mere administrative link did not suffice.  What was required was some level of participation in, or contribution to, the activities of that group.  As Mr Edwards played no part in the group’s work he could not be assigned to it and did not transfer to Ericsson.

The EAT indicated that where an employee is on long-term sick leave at the time of a TUPE transfer but may be able to return to work in the foreseeable future, the employee would be assigned to the organised grouping that he could have been required to work for, had he been able to.

The case shows that, given similar circumstances, whether an employee on sick leave transfers under TUPE is likely to depend on whether a return to work is foreseeable.  Employers with an employee on long-term sick leave should make sure they keep in regular contact and up-to-date on the medical prognosis.  In addition to creating confusion in a TUPE scenario, allowing the situation to drift could lead to claims for disability discrimination or failure to make reasonable adjustments.