A Housing Association, the Trafford Housing Trust, demoted an employee, Mr Smith, a practising Christian, for ‘gross misconduct’ after he posted comments on his private Facebook account about his opposition to gay marriage.

Mr Smith sued in the High Court for Wrongful Dismissal and won, although he only got £100 compensation, since he was demoted rather than sacked outright and he only lost a small amount of pay.  The case gives useful guidance on whether it is appropriate to take disciplinary action against employees for comments on social networking sites.

The first point is that, unusually, the case was brought in the High Court, and Mr Smith did not claim Unfair Dismissal in an Employment Tribunal, he was apparently unable to afford to at the time. If Mr Smith had done so, he would almost certainly have won a lot more than the damages of around £100, so the Trust had a lucky escape.

After a disciplinary process, Mr Smith was demoted for gross misconduct by making his comments on Facebook, which were visible to around 45 work colleagues, and he also mentioned his job and employer in his profile.

At court, the Trust had to show that Mr Smith’s comments – which, broadly, were that requiring Churches to hold ‘gay marriages’ would be “an equality too far” and a follow-up comment – were a breach of its Equal Opportunities policy and Code of Conduct. The Trust alleged that Mr Smith had brought the Trust into disrepute, and had breached the policies and code of conduct in other ways.

In a stinging rebuke to the Trust, the judge did not consider that any reasonable reader of the postings on Mr Smith’s Facebook page could rationally conclude that the posts were relevant to his work, and it was obvious that Mr Smith’s postings were simply about his point of view. The postings could not sensibly have brought the Trust into disrepute as Mr Smith’s employer, and the one employee who saw his posts on Facebook and had objections to them as homophobic, was not ‘objectively reasonable’.

The judge did indicate that if an employee were to post comments about a colleague, or indeed work, on Facebook, that could be grounds for disciplinary action. The judge pointed to the importance of interpreting workplace policies in the proper context of the situation for which they are intended.

From this case, employers should note the following:

1.    Policies and procedures will be viewed in Court or Tribunal from an ‘objective’ viewpoint, and individual reactions are unlikely to be as important as an impartial observer’s view.

2.    Employees’ private comments are normally just that, private, unless there is a direct impact on work.

3.    Over-sensitive reactions to contentious comments should not drive disciplinary action.

4.    Comments about work or work colleagues can be investigated and disciplinary action can be taken, but there needs to be a demonstrable impact on work or customers.

If you have any questions, or would like us to check on your Social Media policies then please call Tony Edge now on 020 7870 1090.

The Employment Appeal Tribunal has ruled on an appeal in Cherfi v G4S Security Services Ltd which involved an employee, a security guard, who claimed religious discrimination by his employer, when he wasn’t allowed time off work to go to a mosque on Friday lunchtimes.

The employee worked at a site in North London, and he wished to go to his mosque on Friday lunchtime. This involved a considerable amount of time away from work due to transport difficulties. The reason he was not allowed time off was due to the operational requirements of the business, as the employer was contracted to ensure that security staff remained on site during lunch breaks so that enough staff were available.

This was a question of indirect discrimination, where the employer imposes a requirement – here to stay on site during lunchtimes – which means that, in this case, for reasons of religious belief, an employee cannot comply with the requirement on a Friday. The employer is required to provide an objective justification for its requirement, or else it would be discriminating indirectly against that employee by imposing a requirement that it cannot justify.

The Employment Tribunal rejected the employee’s complaint, holding that the employer had established an objective justification for its practice of requiring employees to be on site when the employee wished to be absent for religious observance, and that outweighed the impact on the employee of this policy.

If the employee were to have been allowed time off, the employer would have breached its obligations to its client, risking penalty clauses and potentially losing the contract. The employer had taken several steps to help the employee, including removing him from the Friday rota and offering him work at weekends to make up his time. It was accepted that it would have been impractical to have an extra guard employed to cover just part of the employee’s shift.

When the employee appealed, he argued that the Tribunal had failed to consider the impact of the requirement to work on Friday on him and that it had simply focused on the problems faced by the employer. The EAT disagreed, and held that the Tribunal had carried out the necessary ‘balancing act’ to ensure that when an employer’s business needs and an employee’s personal needs collide, the employer could justify its decision to stick with its practice.

The lesson for employers from this case is that when faced with a possible indirect discrimination claim, a common example is a request to work part-time after maternity leave, the employer should look at both sides of the picture and consider the impact on the employee as well as on the business. An Employment Tribunal is required to take an objective view of the situation, and an employer that has a good case should not be afraid to put it forward.

In this case, the employee’s requirement to go off site created particular difficulties for the employer, and the employer had done what it could to reduce the impact of Friday working on the employee.

Ed McFarlane
www.Deminos.co.uk

Recent media speculation that the Government is planning to reduce the burden of employment legislation may be a ‘mirage in the Desert’.

The Government put out a press release on 11th May 2011 stating that it was considering reforms as part of a review of employment red tape. Three areas are under consideration:

1.    Compensation for discrimination: The government notes that employers are concerned of the potential for unlimited liability in discrimination cases, and that concern about high awards can push employers into settling even weak cases.

2.    Collective redundancy rules: The press release notes (wrongly) that the requirement to consult for 90 days in a collective redundancy is hindering effective restructuring. There is in fact, a 90-day period only if 100 or more employees are at risk in one establishment, for 20-99 employees the period is 30 days.

3.    TUPE: The main thing everyone probably would agree about TUPE is that if you’re not upset by it, you probably haven’t understood it. There is concern over the impact that TUPE has on new business owners, so it is a deterrent to taking over failing businesses.

All these criticisms are valid, however, in each area there is a European Law dimension and the Government cannot simply go back on laws that implement European Directives without the agreement of the other Member States to water down the Directives that are implemented in UK law. For example, an Act of Parliament that placed a cap on discrimination awards could be struck down by the European Court of Justice, as could changes in the other areas.

On the positive side, in discrimination law, it could be possible for Parliament to legislate to provide guidelines for compensation in Discrimination cases. The well-known Vento principles were developed by Judges, and recently increased by Judges with inflation-proofing in mind.

If Parliament were to set out in law guidelines for Courts and Tribunals to follow in Discrimination cases (and they are linked to other personal injury awards) that would be one way to provide more certainty about awards for injury to feelings, but it would require a wholesale revision of the current “Claims Culture”.

Even then, claims for loss of earnings in discrimination cases can be unlimited, one way to indirectly alter that might be to amend the Common Law rule on mitigation of loss to provide for the burden to fall on the employee to show that he has mitigated his loss, rather than the other way round as it is at the moment, and that would only make an employer’s task easier.

In collective redundancies, there could be clearer guidelines for when consultation begins and ends, that could provide some certainty for employers and would be a welcome start. That wouldn’t require much effort from the law makers.

On TUPE, one area where the law could be simplified is in the Service Provision Change rules that came into force in 2006. Those rules ago beyond the minimum required by the EU Directive and are partly made under the Employment Relations Act 1999, and so they are “home-made”. Therefore, the Government has some scope to amend the rules in that area without falling foul of European law. However, doing that would create even more uncertainty in an area which the law is now quite well-developed.

So, there might, one day, be some changes that could simplify the law in these areas.

One thing that the Government hasn’t suggested is reducing the cap on Unfair Dismissal. It was £12,000 until 25th October 1999, and if index-linked it would be now around £16,500. The current cap of £68,400 has gone up from £50,000. This could be one way to reduce the burden of Unfair Dismissal on employers, by reducing the maximum exposure (unless it’s a discrimination claim, of course). This would require amendment via an Act of Parliament, but it would probably be of more benefit to employers than changing the qualifying period for Unfair Dismissal from one year to two years service.

It might reduce the number of lawyers too!