Employment Bulletin – from Longmores – Minimum Wage – Tweet Dismissal – TUPE – New Acas Guide

Dear All,

Please find below the Latest Employment Law Bulletin from Richard Gvero

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Welcome

The month of tricks and treats is upon us. If there’s one thing that is sure to give employers the heebie jeebies, it’s the thought of reputational damage caused by having got something badly wrong in employment law. This autumn there is due to be a new mechanism by which the public at large can read all about employers’ failures.

The Courts and Tribunals Service announced earlier in the year that employment tribunal decisions will be placed online. Those decisions are not currently as readily available as those of higher courts, which have been online for some time.

Of course this works both ways. Employers who win cases will have that fact known. For those who don’t, there may well be greater publicity around mistakes and bad judgment calls. It will be interesting to see the extent to which the online availability of tribunal decisions will affect each party’s negotiating position in the run-up to a hearing. Will we see an increased appetite for, or more resistance to, settlement?

Richard Gvero
Head of Employment
Tel: 01992 305210
Email: rxg@longmores-solicitors.co.uk

Visit Longmores’ website

1st October means one thing: changes to the National Minimum Wage.
Here goes: –

• The rate for those aged between 21 and 24 has risen from £6.70 per hour to £6.95.
• For workers aged 18 to 20, it’s now £5.55 instead of £5.30.
• The young workers’ rate for those aged 16 and 17 is £4.00 instead of £3.87.
• The apprentice rate has risen by 10p to £3.40.

For workers aged 25 and over, the national living wage of £7.20 per hour continues to apply.

Unfair dismissal for ‘inept and crass’ tweet
Elliott v Lloyds Banking Group

For all its good points, social media presents countless challenges for employers and employees. In particular, employers will be at pains to not be associated with any comments made by their employees that are ill-advised or offensive.

Ms Elliott was the manager of a small Lloyds Bank branch. She posted the following tweet from her personal Twitter account:

‘Open fire on #calaismigrants then they will soon go home and stop causing the #ukproblems’

Ms Elliott’s Twitter profile contained her full name but it didn’t refer to her employer, her job or her place of work. However, her LinkedIn profile contained the same profile picture as her Twitter account, and it identified her as being a bank manager employed by Lloyds. She didn’t know that an online search using her image could connect the two social media accounts.

That’s what happened; someone retweeted Ms Elliott’s tweet, attaching an image of her LinkedIn profile. It led to various people tweeting to complain, identifying Lloyds. Although she deleted her Twitter account straightaway, believing that that would remove her posts, Ms Elliott was dismissed. She was alleged to have breached this provision of the employer’s Personal Integrity Policy (PIP):

‘…electronic or social media sent or used within, or related to, the Group [must] not contain abusive, obscene or libellous comments…which might harm the reputation of the Group.’

Unfair dismissal, said the tribunal. There were all sorts of things wrong with the decisions taken and the process carried out by the employer, including an unsatisfactory investigation and a defective hearing. The following points are of particular interest:

1. No reasonable employer would have concluded that dismissal was proportionate. Even if Ms Elliott had breached a policy (which she hadn’t), there was plenty of mitigation, including her unblemished disciplinary record and the fact that no one would really have thought that she was making the comment on behalf of Lloyds.

2. A reasonable employer would not impose any sanction on an employee where, as in this case, the relevant company policies were not contractual or didn’t have direct application. However, it would be reasonable for an employer in these circumstances to require the employee to remove reference to her employer’s identity from her online profiles.

3. Ms Elliott had not contributed to her dismissal, even though her tweet was ‘inept and crass’. Relevant to that decision was the tribunal’s finding that she was not in breach of any policies (her tweet wasn’t sent within and didn’t relate to Lloyds, therefore wasn’t covered), and that she enjoyed a right to freedom of expression.

 

The Transfer of Undertakings (Protection of Employment) Regulations, better known as TUPE, apply to relevant transfers. A relevant transfer can happen where there is a service provision change – for example, a new contractor takes over. Where that’s the case, TUPE operates to transfer workers over to the new provider.

The question in this case was had there been a service provision change? This hinged on whether or not the activities that had been carried out by a contractor (CT Plus) on a client’s (the Council’s) behalf were then carried out instead by a subsequent contractor (Stagecoach) on the client’s behalf.

CT Plus ran a Council-subsidised park-and-ride service. Stagecoach began operating along the same route. This led to the council terminating its arrangement with CT Plus. Stagecoach didn’t take on any CT Plus drivers; it didn’t think that TUPE applied. A claim followed.

The tribunal decided that the CT Plus drivers didn’t transfer because there was no service provision change. It was relevant that Stagecoach:

• didn’t take anything over from CT Plus;
• didn’t have a contract similar to the one between CT Plus and the Council;
• didn’t receive a subsidy like CT Plus had received;
• had changed the timing of the service, and
• had recruited its own team of drivers, mainly by internal transfer.

The EAT upheld that decision; no TUPE transfer had taken place. It’s vital that the client is the same before and after the service provision change, and that wasn’t the case here. The Council was the client under the arrangement with CT Plus; that changed when Stagecoach took over. The Council was no longer the client; rather, Stagecoach was carrying out its own commercial venture on its own behalf – as opposed to on behalf of a client – and the council was just an ‘interested bystander’. So there was no service provision change and no TUPE transfer.

And finally…
Acas guide that breaks new workers in gently

The unfamiliarity that goes with stepping into the world of work could be taken down a notch or two by new Acas guidance.

‘New to work’ fills new recruits in on some employment law basics. It’s a neat summary of key areas including contracts, the National Minimum Wage, dealing with problems at work, and sickness and absence. It also contains a section on behaviour outside work, and on using social media.

It can be easy to forget that, for many new employees, their first proper job is their first experience of the formality, rules, and customs and practices of the workplace. Recognising and addressing this could be the best start to any employer/employee relationship.

The guide is available here.

Longmores is a long-established firm with a forward-thinking approach.

Longmores’ Employment team is ranked in Chambers UK and The Legal 500. Richard Gvero and Catrin Mills are ranked as “Leaders in their Field” and “Recommended Lawyers” for employment and HR.

Our strong employment team has highly experienced lawyers on hand to provide everything from HR advice and support to representation in complex employment law cases. We also provide bespoke training.

For more information on our employment law services, get in touch.

Catrin Mills Partner and Head of Harlow Office

Richard Gvero Partner and Head of Employment

Miranda Mulligan Solicitor

Jennifer Mansoor Solicitor

Address  24 Castle Street, Hertford, SG14 1HP
Tel: 01992 300333
Harlow Enterprise Hub, Kao Hockham Building,
Edinburgh Way, Harlow CM20 2NQ
Tel: 01279 210300
Email: advice@longmores-solicitors.co.uk

The information and any commentary contained in these bulletins is for general information purposes only and does not constitute legal or any other type of professional advice. Longmores Solicitors LLP does not accept and, to the extent permitted by law, excludes liability to any person for any loss which may arise from relying upon or otherwise using the information contained in these bulletins.

If you have a particular query or issue you are strongly advised to obtain specific, personal advice about your case or matter and not to rely on the information or comments in this bulletin.

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