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Suspension for alleged misconduct may be a breach of contract

In the recent case of Agoreyo v. London Borough of Lambeth [2017] EWHC 2019 (QB), the High Court has held that suspension as a "knee-jerk" reaction to an allegation of misconduct may in itself be sufficient to breach the implied contractual term of trust and confidence.
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Suspension for alleged misconduct may be a breach of contract

Assuming the best…

In the recent case of Elmore v Darland High School, the Employment Appeal Tribunal upheld a Tribunal’s determination that a dismissal was fair, despite the fact that the appeal panel did not give any reasons for dismissing the Claimant’s appeal and none of the appeal panel gave evidence before the Tribunal. The Tribunal held that, in the absence of such evidence or express reasoning, it was entitled to infer that the appeal panel had upheld the capability dismissal for the same reason as the original capability panel. A somewhat surprising decision, particularly given that the Claimant, a maths teacher, had been employed by Darland High School for over a decade.

Assuming the best…

Social Media: The Employer Strikes Back

The recent case of Plant v API Microelectronics Ltd should serve as a reminder to employees of the potential dangers of using social media to post comments about their employer, and to employers of the importance of having in place a clear social media policy.

In that case, API introduced a policy which prohibited unacceptable social media activity, including posting comments that could damage the reputation of the company. Following an announcement of a proposed relocation, Mrs Plant unwittingly posted a comment about suing her employer on Facebook, not realising that the page was linked to her employer’s technology.

API instigated a disciplinary process, ultimately leading to Mrs Plant’s dismissal. Mrs Plant claimed unfair dismissal in the employment tribunal, relying on her otherwise clean disciplinary record and long length of service. The Tribunal held that, whilst the decision may seem harsh, the dismissal was still within the band of reasonable responses by the employer and, as such, ultimately fair.

Social Media: The Employer Strikes Back

When is an after-party an after-party? Christmas parties and vicarious liability claims

It’s that time of the year again – Christmas parties and work socials galore. That heady mix of festive spirit and copious amounts of free alcohol. Add in work colleagues and things can get a little bit sticky. As some employers have learned the hard way, there is a fine line between the point at which a work event ends and a private social event begins.

Where mishaps do occur, employers could inadvertently find themselves vicariously liable for the actions of their employees.

An employer can be held responsible for the actions of employees “in the course of employment”. The employees actions must be “so closely connected with [the] employment that it would be fair and just to hold the employers vicariously liable”.

Whether something is done “in the course of employment” is highly fact sensitive, which is demonstrated by some of the seemingly conflicting case law in this area of vicarious liability.

Bellman v Northampton Recruitment Ltd [2016]

In this recent case, a manager assaulted a director after a Christmas party, causing him serious brain injury. As is not uncommon, after the Christmas party, a group of employees carried on the night with another drink at a hotel nearby. The relevant assault took place at the hotel at 3am. The High Court held that the employer was not vicariously liable, as the employee’s actions were not sufficiently connected to his employment. The Court considered that the after-party was a private event as it had taken place in a different venue to the work Christmas party, a significant period of time had passed since the party had ended, it was not pre-planned and the employer was not paying for the drinks.

Livesey v. Parker Merchanting Ltd [2004]

By contrast, on a similar set of facts, the employer in this case was found vicariously liable for the actions of its employee who sexually assaulted a colleague after a work Christmas party. The distinguishing fact was that the assault occurred in the car on the way home, immediately after the party. The Court found that the conduct in question was a continuation of sexual harassment by the employee at the work event and, as such, was in the course of employment.

What can employers do to mitigate some of the risks?

The cases demonstrate how difficult it can be to draw boundaries between what is a work event and what is a social event. Employers should have adequate policies in place to set out what behaviours will not be tolerated. Employees should be reminded of these policies before work events and training should be provided where appropriate.

When is an after-party an after-party? Christmas parties and vicarious liability claims

Can you dismiss an employee if they have allegedly committed a criminal offence?

An American football team, the San Francisco 49ers, has dismissed its player Bruce Miller following his arrest on suspicion of assault after an altercation about a hotel room. Although both an American and sports related story, it poses an interesting question to employers in the UK … can you dismiss an employee who faces a criminal conviction?

You would first need to consider whether this behaviour was misconduct. There is no outright rule that an employer should dismiss an employee who it is alleged has committed or is found to have committed a criminal offence. The Acas Code of Practice states at paragraph 31 that “if an employee is charged with, or convicted of, a criminal offence this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers.”

Some points an employer may want to consider include:
• the seriousness of the offence;
• whether it can leave the job open while the employee cannot work;
• whether the conviction affects the employee’s job (e.g. loss of driving licence); and
• the employee’s refusal to cooperate with the employer’s disciplinary investigations.

Employers should also consider what its employee handbook says on this topic. For example, a typical clause in the handbook may state “a criminal investigation, charge or conviction relating to conduct outside work may be treated as a disciplinary matter if we consider that it is relevant to your employment.” Therefore, the employer will need to review and consider whether an investigation or suspension would be necessary. Responding to an employee’s criminal conviction remains a grey area on which advice should be sought.

Can you dismiss an employee if they have allegedly committed a criminal offence?

Insight: UK Employment Law Round-up – August 2016

Employment Round Up THUMBNAIL In this month’s issue we consider the case of Dronsfield v. University of Reading, in particular the EAT’s observations in that case about how disciplinary investigations should be conducted and the role of HR in finalising investigatory reports and disciplinary decisions.

We also look at a recent case on the definition of “worker” for whistleblowing purposes, which established that, in some circumstances, a “worker/employer” relationship may be established between an agency worker and an end user.

We consider the “cautionary tale” of Byron Burger on how not to assist in a Home Office investigation, with a brief reminder of the risk of not carrying out appropriate “right to work” checks.

Finally, we consider what’s next for UK employment law – not just in the context of Brexit, but also in terms of the pledges and agendas our political leaders have set out.

Read the full newsletter here.

Insight: UK Employment Law Round-up – August 2016

Tailoring social media policies to catch Pokémon Go

In our article published today in HR-inform we consider the key steps employers can take to make their social media and information technology policies more robust and mitigate the risks associated with staff playing Pokémon Go.

Click here to read the full article.

Tailoring social media policies to catch Pokémon Go

…gotta catch ’em all!

Last week’s launch of the smartphone game “Pokémon GO” has swept the UK faster than you can say “gotta catch ’em all”. The aim of the game is to explore surrounding areas and catch characters that are hiding in real-life locations. Players use GPS signalling and augmented reality to discover the Pokémon. While many herald this app for its benefits to those who may not do much exercise, employers may need to watch staff productivity to ensure that they are not playing the game while they should be working.

Clearly, if an individual is playing Pokémon GO during work time, they will not be performing their duties. Soon after its release, Boeing discovered staff had downloaded the app on more than 100 work phones. As a result, it has issued a ban on its workforce from playing the game during working hours.

Some employers may allow their staff to continue their search for these illusive characters during lunch breaks. However, having staff wander round the office in their breaks looking for a “Squirtle” or “Rattata” is likely to disturb those who are still working. This could also pose a health and safety risk if workers are staring at, and being guided by, their screens and not looking at where they are walking. It is perfectly acceptable for employers to limit workers’ use of the app to areas outside the building to minimise the disruption it could cause.

If staff are wasting time interacting with this app instead of working, employers are also within their rights to approach this as a misconduct issue and engage the disciplinary policy. So what should employers do to manage this?

  1. Ensure that social media policies are up to date – while these may not specifically refer to use of the Pokémon GO app, it will set out the employer’s expectations.
  2. Ensure the IT and communications policy comprehensively addresses the use of company resources and how employers will deal with misuse.
  3. Where employees are using personal devices at work, consider including or updating the “bring your own device to work” terms in the IT and communications policy to clarify what will amount to acceptable use.
  4. Should there be any loss of productivity or misuse of company resources, follow the employer’s disciplinary policy, using a consistent approach with all staff.
  5. If employers consider it is a risk to work momentum, send a company-wide email reminding staff that they should not be playing the game instead of working and remind them of the relevant company policies.
  6. Avoid a “knee-jerk” reaction as this is likely to be a passing trend that will decline and be replaced by a new craze.
…gotta catch ’em all!

“Pulling a sickie”

Welcome back from a long Easter weekend break. Hopefully you are all feeling refreshed and you’ve returned to a reinvigorated workforce. However, it will be interesting to see how many employees “pull a sickie” today after an over-indulgent long weekend.

In the recent case of Ajaj v Metroline West Limited, the EAT held that “pulling a sickie” when not actually ill can amount to dishonesty and to “a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.” Such behavior could therefore warrant dismissal on the grounds of gross misconduct.

Of course, consideration has to be given to the specific facts of each case in deciding whether there has been an act of gross misconduct.  In Ajaj, the employee had a significant period of absence in which he was dishonestly claiming sick pay.

Where employers do have concerns about the genuineness of an employee’s sickness absence, they should ensure that they follow a fair investigatory and disciplinary process and that any disciplinary action taken is proportionate.

“Pulling a sickie”

A Snooper’s Charter?

Much has been made in the UK press of the European Court of Human Rights (ECtHR) decision in the case of Barbulescu v Romania – 61496/08 [2016] ECHR 61. Some have declared a ‘snooper’s charter’ and suggested that this is just another case of Europe infringing on the right to privacy of British citizens. However, in reality, the decision is likely to have limited impact on how employers monitor their employees in the UK.

The case had a rather unusual set of facts and concerned the monitoring of a Yahoo Messenger account which was set up by the Claimant to deal with client enquiries. The employer had strict policies in place strictly prohibiting any personal use whatsoever of its computers, internet or telephones. The Claimant was dismissed for breaching the policies, following an investigation which involved the employer monitoring the Claimant’s online communications.

The Claimant initially brought an action in the Romanian courts to challenge his dismissal but this was unsuccessful. He therefore brought a claim against the Romanian government in the ECtHR, principally on the grounds that it had failed to protect his rights to privacy and correspondence under Article 8.

Whilst the European Court of Human Rights held that his Article 8 rights had been engaged, it dismissed the case on the grounds that the interference had been proportionate.

In the UK, most employers allow, or at least tolerate, some personal internet and telephone usage at work and as such the case has limited impact. However, it highlights the need for employers to have in place full and effective social media and IT policies, and to consider carefully the concept of proportionality in the context of monitoring. Employers must also consider their obligations under the Data Protection Act 1998, as monitoring will involve the processing of personal data.

A Snooper’s Charter?