Employment Bulletin – February 2019

Employee dismissed over Facebook comments awarded £5,376

A company had not acted unfairly when it dismissed an employee for gross misconduct after he made offensive comments about the managing director on Facebook.

However, the employee's behaviour had not been so bad that it warranted dismissal without any notice pay so he was entitled to compensation.

The tribunal heard that the employee became angry when the company's Christmas bonuses were reduced in value due to financial restraints. He began posting offensive comments about the managing director.

The employee apologised for the comments at a disciplinary hearing and said that, at the age of 55, he was embarrassed and regretted what he had done.

The company said the comments had been "extremely derogatory" and dismissed him for gross misconduct without notice or pay in lieu of notice.

The Employment Tribunal rejected the employee's claim of unfair dismissal but ruled that although offensive, his actions had not reached the "high hurdle" required to prove "gross misconduct" and so did not justify dismissal without notice.

The employee was awarded £5,376 compensation.

Workers should have received statement of rights after one month

The Employment Appeal Tribunal has ruled that a hotel worker is entitled to compensation because her employer failed to give her a statement of rights after one month of employment.

The case involved three Polish workers who were dismissed after they complained about "persistent shortfalls in their wages, late payment and a falsification of their wage slips".

Section 1 of the Employment Rights Act 1996 (ERA) requires that an employer should provide employees with a statement on the terms and conditions of work within two months of beginning employment.

However, none of the workers in this case were given such a statement.

The Employment Tribunal at the first hearing held that two of the workers were automatically unfairly dismissed and awarded them four weeks' pay in compensation.

However, it ruled the third worker had only been employed for six weeks and so the employer had not breached the regulations because the two-month time limit had not been reached.

The Employment Appeal Tribunal has overturned that decision. Judge Stacey held that the obligation "to provide the statement continues for employees with one month or more service, whether or not the employment relationship is ended in its second month.

"It does not follow from the flexibility afforded to an employer by section 1(2) as to when the statement of initial employment particulars must be provided, that there is no requirement to provide a statement if the contract ends within two months."

Judge Stacey added the following advice to employers: "It goes without saying that whilst sections 1, 2 and 198 ERA 1996 represent the minimum floor of legal rights, it is best practice for the written particulars to be provided as soon as possible to protect both parties and in order to minimise risk of ambiguity or misunderstanding of the terms agreed that form the contractual basis of the employment relationship."

The case was remitted to the Employment Tribunal to decide whether the employee should receive two or four weeks' pay in compensation.

A separate claim of race discrimination involving all three workers, which was dismissed by the Employment Tribunal, was remitted back to be heard by a fresh tribunal.

Security guard was unfairly dismissed after submitting grievance letter

The dismissal of a security guard after he submitted a grievance letter on behalf of work colleagues has been ruled unfair by the Employment Tribunal.

The case involved an employee who worked for an NHS Trust.

In 2016, the employee emailed the trust's chief nurse saying that security officers "had lost trust in management" over various issues. He was told by the HR department that he "should not go straight to executive officers but should use the appropriate workforce policy".

The employee and the other officers then consulted their trade union and raised a collective grievance. It was written by the employee and signed by six other officers.

The trust instructed an independent HR company to investigate the grievance. During the investigation, all the officers except the employee withdrew from the grievance procedure.

Following further internal investigations, a manager in the case concluded that the collective grievance "had been submitted in bad faith and should be considered as a disciplinary matter".

The employee was later dismissed after a disciplinary hearing concluded that his actions had amounted to gross misconduct.

He brought a claim to the Employment Tribunal, which ruled in his favour. It held that he was unfairly dismissed because the trust's actions were "outside the range of what was reasonable in terms of investigation, grounds for belief and procedure".

During the investigation about the allegation that he was acting in bad faith, he was not asked in any depth about the claims or shown notes of interviews with other people involved, nor was he asked for his version of events.

Despite these failings, the investigator went on to recommend the disciplinary proceedings that led to the unfair dismissal.

The employee was awarded £10,990 compensation.

SMEs won't be forced to disclose their gender pay gap

The government has confirmed that small and medium-sized enterprises will not be obliged to reveal their gender pay gap.

Currently, business employing more than 250 people must publish the pay differential between men and women. It's part of an ongoing strategy to equalise salaries and eradicate discrimination.

Following a review, the Business, Energy and Industrial Strategy (BEIS) select committee recommended that the requirement should be extended to businesses with 50 or more employees.

In its response, the government has urged smaller companies to publish the information voluntarily but has stopped short of making it a legal requirement. It said: "Given the range of metrics required, it was felt that reporting could be particularly burdensome for small and medium sized businesses and so the requirement should be restricted to large employers."

The government also rejected the committee's recommendation that organisations should be obliged to publish an action plan stating how they would close the gender pay gap.

"While the Government urges all employers to produce an action plan alongside their figures, we were aware that including it as a mandatory requirement might result in a prescriptive format with limited value to employers and employees.

"By not making them mandatory, we have given employers the freedom to produce an action plan that is relevant to their individual situation which they can truly commit to and embrace."

Although such action plans are not mandatory, the government statement was clear that companies ought to produce them and do everything possible to reduce pay inequality. "We have been clear that employers must take action to close the gender pay gap in their organisation, beyond reporting.

"Drafting an effective action plan is crucial to this. We estimate that approximately 48% of employers have published action plans alongside their figures in the first year of reporting."

Food supplier prevents former employee soliciting its customers

A food supplier has been granted an injunction to prevent a former employee from soliciting its customers for a rival business.

The former employee had worked as the employer's marketing manager. There was a non-solicitation clause in his employment contract prohibiting him from soliciting any business from the supplier's current or potential customers for a 12-month period after termination of his employment.

There was also a non-competition clause prohibiting him from competing with the supplier's business during his employment and for 12-months post-termination.

The employee left the supplier to work for a rival company. The supplier took legal action to enforce the post-termination restrictions. It sought an interim injunction pending trial.

In giving its judgment, the court said post-termination restraints that were reasonable in terms of space or time were likely to be enforced. It was for the employer to show that a restraint was reasonable for protecting its interest, such as confidential information and customer lists: the right did not extend to mere potential customers.

Non-solicitation clauses were more favourably looked on than non-competition clauses because an employer was not entitled to protect itself against mere competition on the part of a former employee.

The court therefore granted the injunction in relation to the non-solicitation clause. However, it declined to enforce the non-competition clause because it was wider than reasonably necessary to protect the supplier's confidential information or trade connections.