Canter Levin & Berg Employment Solutions

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August 2015

the employment law briefing

Welcome to our slightly briefer than usual August update in what is traditionally a quiet month for employment law.

Perhaps the most significant news of the month is the failure of UNISON's appeal to the Court of Appeal challenging the introduction of fees for employment tribunal claims. The Court reached the somewhat surprising conclusion that it was not possible to establish a causal connection between the introduction of the fees regime and a subsequent reduction in claims of some 70 per cent. It is fair to say that this is not a widely held view. Some have noted that Lord Underhill, who delivered the lead judgment, had previously indicated that he saw the case for the introduction of fees. UNISON has announced that it intends to take its appeal to the Supreme Court. The Government has also announced that it intends to review the operation of the fees regime although the consultation is yet to materialise. The matter therefore remains unresolved. In the meantime research has shown that employment claims still cost employers an average of £8000 to deal with, apart from any award made.

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This month's news:

  1. More issues concerning employee rights and social media
  2. Government announces consultation on devolving Sunday trading rules
  3. Woman takes maternity leave is front page news in The Telegraph
  4. Is the denial of a choice of representative a breach of contract?

Kind regards

Martin Malone

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This month's news round-up:

1. More issues concerning employee rights and social media


As we all know social media is an increasingly pervasive aspect of many of our daily lives. As I have previously reported the interaction between the publication of information by individuals on their personal social media platforms and rights at work can create significant problems.

This issue returned for judicial scrutiny once again this month in the Employment Appeal Tribunal decision in the case of British Waterways Board v Smith.

Mr Smith commenced employment with British Waterways Board, trading as Scottish Canals, as a manual worker in April 2005. Staff worked a seven day rota with standby for seven days one week in each five. Mr Smith was one of a team of eight, described by the Employment Tribunal as "not a happy team". In 2012 and 2013 Mr Smith raised a number of grievances covering health and safety issues and an allegation of bullying and harassment by certain managers and supervisors. After investigation and an occupational health report was obtained a recommendation was made for mediation. Mr Smith did not want to attend mediation but it was nonetheless arranged to take place on 23 May 2013. On arrival with his union representative he was told that the mediation was not going to take place and, instead, he was suspended from work as a result of comments retrieved from his Facebook page.

The information retrieved included derogatory comments about managers and a reference to "being drunk while on standby". Comments found by the Employment Tribunal to have been posted by Mr Smith are listed in the judgment. I won't reproduce them here. Suffice to say that they use very strong language and are clearly very derogatory about Mr Smith's employer and his managers.

Mr Smith admitted that he had posted the comments but said that he had not intended to offend anyone and that he had been "indulging in banter". He said that it was typical to slag off the person on standby and that he had not in fact been drinking. However he also maintained that his Facebook page had been hacked and he did not know that the settings had been changed from private to public.

A disciplinary investigation report was prepared. It was noted that the posts were in any event public and available to be read. They were therefore likely to damage the reputation of both the employer and Mr Smith's manager. The reference to being drunk while on duty gave the impression of a risk to public health. It was recommended that there should be a disciplinary hearing. Reference was made to the Company's disciplinary and email and internet policies, the latter including the following:

The following activities may expose [British Waterways] and its employees, agents and contractors to unwarranted risks and are therefore disallowed...Any action on the internet which might embarrass or discredit [British Waterways] (including defamation of third parties for example, by posting comments on bulletin boards or chat rooms)...

Mr Smith said that despite what was on Facebook he had never been drunk while on standby. The other things he had said were also in jest. He thought that the timing of the allegations provided a convenient way to prevent his grievance from being investigated. He repeated that he thought that his Facebook page had been hacked and the security settings changed. Notwithstanding his mitigation Mr Smith was summarily dismissed from his employment by letter sent on 4 June.

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2. Government announces consultation on devolving Sunday trading rules

high street

On 5 August the Government commenced a consultation on allowing local areas to set their own Sunday trading rules. Larger shops (over 3000 square feet) have been restricted to a maximum six hours and it is felt that this is out of keeping with on-demand shopping available elsewhere, particularly online. The options under consideration are devolving powers to local areas, perhaps through "metro mayors", or more widely by devolving the powers to local authorities across England and Wales. It is not proposed to alter the rules applying to Easter Sunday and Christmas Day.

From an employment law perspective this proposal raises the question of protection of workers who do not wish to work on Sundays, for religious or other reasons. Shop workers who commenced their employment before 26 August 1994 cannot be required to work on Sundays unless they have opted in to do so or are employed to work only on Sundays. Other employees have the right to give their employer an opting-out notice which, with effect from three months from the date of the notice being served on the employer, gives the employee the right to opt out of Sunday working. The right is absolute and cannot, such as with requests for flexible working, be refused by the employer on the ground of business needs or otherwise.

There is no requirement for employers to pay a higher rate for working on Sundays, although many choose to do so in order to encourage employees to give up their Sundays and meet staffing requirements.

It is often overlooked that employers who have a requirement for staff to work on Sundays must tell them in writing that they have the right to opt out. The written notice must be provided within two months from the commencement of employment and failure to do so means that an employee only needs to give one month's notice in order to opt out.

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3. Woman takes maternity leave is front page news in The Telegraph


Coverage of the announcement that Marks and Spencer's most senior female employee, Head of Multi-channel, Laura Wade-Gery, is taking maternity leave has shone a light on how rights which are taken for granted by most women cannot be assumed to be so by senior managers. The story merited sufficient significance to feature on the front page of the 19 August edition of the Daily Telegraph

The retailer was required to make a stock exchange announcement about the maternity leave under rules requiring disclosure of absence longer than a typical holiday. The announcement included notification that Ms Wade-Gery will be returning to work in early January after four months' leave, much earlier than would be typical for maternity leave. Marks and Spencer is known for its enlightened approach to employee rights and was one of the early adopters of offering employees career breaks in addition to statutory leave entitlements.

However the lack of women in very senior appointments generally means that their rights, when balanced against their obligations to their employers and their employers' shareholders, are less well defined. During her absence cover will be provided by a director of retail and a director of M&, reporting directly to chief executive Marc Bolland.

The Telegraph article highlights that Belinda Earl, M&S style director was the first ever chief executive of a leading public company to go on maternity leave, taking six weeks when she was head of Debenhams in 2001.

The comments below the online version of the article demonstrate that there is still, to put it mildly, a lack of awareness and tolerance of womens' employment rights.

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4. Is the denial of a choice of representative a breach of contract?


In 2004 Professor Martin Stevens was appointed to the Chair of Medicine (Diabetes and Metabolism) at Birmingham University.

His duties included leading and co-ordinating a programme of research into the aetiology and management of diabetic neuropathy, foot complications and heart disease complicating diabetes. In addition he led the multidisciplinary diabetic foot service and diabetic neuropathy service across the Heart of England NHS Foundation Trust (HEFT), the organisation from which the University received funds to pay his salary.

Professor Stevens carried out clinical trials for HEFT and the University, in accordance with Good Clinical Practice (GCP). In December 2013 he was himself concerned that there had been breaches of GCP and he reported this. An inspection was carried out and established multiple breaches with the result that Professor Stevens was suspended from any duties associated with research with effect from 20 December 2013. At about the same time the University's Pro-Vice Chancellor commissioned a management review to determine whether or not any disciplinary action was warranted.

In February 2014 the matter was referred to the General Medical Council, ostensibly on behalf of both HEFT and the University but in fact only on behalf of the University since HEFT was not involved in the disciplinary process.

Following the completion of the management review Professor Stevens was suspended from all duties in July 2014. There were 28 alleged breaches of the University's Code of Practice for Research, although no allegations that patients were put at risk or inappropriately treated.

Arrangements were made for an "investigation meeting" and Professor Stevens was told that he could be accompanied by a trade union representative or an employee of the University. Professor Stevens was not in a union but was a member of the Medical Protection Society, a medical defence organisation. Professor Stevens wished to be accompanied by Dr Roger Palmer, an MPS representative who had been supporting him since the initial allegations were made in December 2013. The University refused on the basis that Dr Palmer was neither a member of staff nor a union representative. He maintained that he had no friends who were employees and would be suitable to accompany him other than members of staff involved in the trials who might therefore be called as witnesses.

The University contended that it was concerned that by allowing Dr Palmer to accompany Professor Stevens there would be a departure from the terms of the contract of employment and, in particular, the disciplinary procedures agreed between the University and its approved Union in 2008. It did not wish to create a precedent.

Accordingly the matter which had to be determined by Mrs Justice Andrews, sitting in the High Court, was whether Professor Stevens did or did not have a contractual entitlement to be accompanied by Dr Palmer.

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