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August 2015 Employment Law Update

28-08-2015

Facebook posts, vodka & a fair dismissal

The Employment Appeal Tribunal has held that an employee who made derogatory comments on Facebook about his employer was fairly dismissed, even though the comments were made two years earlier.

The employee was a manual worker on a rota pattern which involved being on standby for one in every five weeks. When on stand-by, the employee was not allowed to consume any alcohol. In addition, the employer’s social media policy prohibited any action which may embarrass or discredit the company.

The employee raised a grievance and an investigation and grievance meeting followed. During this meeting, the employee’s manager supplied a long list of derogatory comments the employee had made against the employer and his colleagues on his Facebook page in 2011, including claims of drinking “vodka and apple juice” whilst on standby.

The employee was suspended pending further investigation into his Facebook comments and was later summarily dismissed for gross misconduct at a disciplinary hearing in June 2013.

The tribunal which first heard the claim concluded that the employee had been unfairly dismissed. They found that the decision to dismiss fell outside the band of reasonable responses an employer could have taken in the circumstances, particularly because the decision did not take into account the employee’s unblemished service record and the fact that the employer’s was aware of the comments for some time and had not previously taken any action.

On appeal, the tribunal reversed the decision and found the dismissal to be fair. They felt that the first tribunal had substituted its own views for that of the employer and that the risk of damage if the employee was drinking on stand-by was significant.

This case highlights that even past misconduct can be relied on and the importance of having a clear social media and on-call policy.

CONSULATION: Apprenticeships levy

The government has published a consultation on the proposed introduction of an apprenticeships levy designed to allow employers choose and pay for the apprenticeship training they want. The consultation is seeking views on the proposal, including:

Views from employers, training organisations and anyone with a vested interest are being sought and you can add your comments here

Six-year time limit & the Employment Tribunal

The Employment Tribunal has held that the time limit for bringing a breach of contract claim in the tribunal is not subject to the general six-year limitation rule (where the claim is brought within three months of termination of employment).

In this case, the employee retired and sought to claim her state pension. HMRC informed her that no national insurance payments had been made on her behalf between 1996-2003, even though the employer had made deductions from her salary throughout this period.

The employee therefore brought a breach of contract claim against her employer. The employer argued that the tribunal did not have jurisdiction to hear the claim claiming that as the last failure to pay the contributions was more than six years ago the claim was subject to the limitation act and out of time.

The tribunal concluded employee’s case should be heard as it was brought within three months of her employment ending, which was the requirement for the tribunal to have jurisdiction. Their view was also that the relevant legislation was intended to extend the tribunals jurisdiction rather than narrow it. As this case was decided by an employment tribunal and goes against a previous employment tribunal decision, there will remain some uncertainty in this area unless an appeal level decision is made. Meanwhile, it highlights to employers that it is not safe to assume that contractual breaches cannot be the subject of a claim if six years have passed.

EMPLOYMENT TRIBUNAL FEES: Appeal dismissed

The Court of Appeal has dismissed an appeal brought by Unison challenging the legality of the introduction of employment tribunal fees.

The Court acknowledged the sharp decline in the number employment tribunal claims, but concluded that this in itself was not sufficient. It was highlighted that further evidence, such as the actual affordability of the fees in individual cases needed to be provided before the level of fees will be revisited. They also cited that the ability to apply for remission of fees in exceptional circumstances would help with affordability in these cases. Other arguments advanced regarding indirect discrimination and the public sector equality duty were also dismissed.


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