Employment law bulletin Winter 2012-13 In this newsletter: Shazia Khan wins Female Lawyer of the Year Award Bindmans Employment team ranked in Chambers & Partners UK Case: Facebook and damage to reputation Case: Work emails do not belong to employer Case: Christmas party punch-ups Government unfazed by negative response to consultation on employee ownership Changing compensation limits from February 2013 Feature: Social media pitfalls and palliatives. Shazia Khan wins Female Lawyer of the Year Award We are delighted to announce that Employment partner Shazia Khan was awarded the prestigious title of Female Lawyer of the Year 2012 by the Association of Muslim Lawyers. Shazia was shortlisted alongside Clare Montgomery QC. The awards took place at the Annual Gala Dinner at the Honourable Society of Middle Temple. Well done Shazia! Bindmans Employment team ranked in Chambers & Partners UK We are delighted The authoritative Chambers & Partners Guide 2013 ranks Bindmans Employment Law team again, reporting that client's say the team is quick to get to the core of the issue and is feared by the other side. Partners Shah Qureshi and Shazia Khan have once again been listed as key individuals. Shah Qureshi has been described as exactly the right lawyer to have on your side and satisfied clients have said he made the other side s lawyers seem pedestrian, while clients say that Shazia Khan is easy to relate to and calm, strong, clear and supportive. Case: Facebook and damage to reputation The High Court has ruled in favour of an employee s right to express his views on Facebook where the employer believed that those views could damage their reputation. 1
In Smith v Trafford Housing Association, Mr Smith posted a link on his Facebook profile to a news story about the holding of civil partnership ceremonies in churches and commented that he thought the move would be taking equality too far. Some colleagues complained and his employer subsequently took disciplinary action against him and demoted him saying that his comments risked serious damage to the reputation of the Association. The High Court found that Mr Smith clearly intended his Facebook account for personal use and that no reasonable Facebook user would have read Mr Smith's comments and linked them back to his employer. The comments made using moderate language, reflected views that were openly discussed in other parts of the media and were simply an expression of his free speech. Employers need to proceed with caution before taking action against an employee for expressing personal views on social media sites like Facebook. They will need to look at what views are being expressed, who they will be read by, what kind of language is used and whether the comments would be related to the organisation in any way. Case: Work emails do not belong to employer The High Court recently rejected the argument that the content of emails is property. The ruling in Fairstar Heavy Transport NV v Adkins was on the basis that the Court saw no practical reasons compelling the existence of proprietary rights in email content. FHT NV had obtained a court order restraining Adkins from deleting or interfering with his work emails. Mr Adkins appealed. Having considered a number of authorities the High Court concluded that although the point was not settled law, it was clear that the preponderance of authority points strongly against there being any proprietary right in the creation of information, and this must apply to the content of an email. The Court s view was that satisfactory protection against the misuse of information contained in emails is already provided by the law of equity, the law on confidential information and, where applicable the law of copyright. FHT NV s application to inspect the emails held by A could not succeed. Case: Christmas party punch-ups Can an employer dismiss an employee for misconduct where the misconduct takes place outside of work? This was a question for the employment tribunal in Gimson v Display By Design Ltd. Mr Gimson was walking home with a group of colleagues after their work Christmas party last year. He had a disagreement with one colleague and then punched another colleague in the face. On hearing of the incident the employer initiated a disciplinary procedure and then summarily dismissed Mr Gimson for gross misconduct. Mr Gimson claimed unfair dismissal arguing that the incident was not misconduct because it happened outside the course of employment and therefore outside the employment relationship. The tribunal held that it was not an unfair dismissal and the employer was reasonable to conclude that the incident was within the course of his employment. The assault would not have occurred had the employee not gone to the Christmas Party and the employer had reasonably concluded that the events were sufficiently closely connected to work to have an impact on the employment relationship. 2
Employers should consider including in their codes of conduct reference to standards of behaviour expected outside of work and at work-related events to ensure that employees appreciate that their behaviour outside of the office can and often does impact on the employment relationship. Government unfazed by negative response to consultation on employee ownership Under the government s proposals employers will be able to offer employees shares in return for the employee giving up employment rights such as the right not to be unfairly dismissed. Despite the consultation showing that 92% of respondents view the plans in a mixed or negative way the government plans to implement the policy in 2013. The government responded to concerns saying the new status is voluntary and accordingly employees will have freedom of choice. Companies who opt to use the new status will simply need to ensure they have issued shares with a real value of GBP 2000. However, the government will not introduce further regulation on how the shares element of the employee owner status should operate. Changing compensation limits from February 2013 From 1 Feb 2013 certain employment tribunal awards and other amounts payable under employment legislation are increasing. These include: Maximum compensatory award for unfair dismissal will increase from 72,300 to 74,200. The figure of a maximum week s pay will rise from 430 to 450 (for the purposes of calculating the basic award for unfair dismissal and statutory redundancy payments). The new rates will apply to cases where the relevant event occurs on or after 1 February 2013. Any event that occurs before 1 February will still be subject to the old limits, irrespective of the date on which the compensation is awarded. 3
FEATURE: Social media pitfalls and palliatives In this article we take a look at how employers can navigate some of the problems that can arise from employees using social media inside and outside of work. Whilst social media has become an invaluable business tool, it has also challenged the boundaries of the employment relationship and posed significant problems for employers who are negatively affected by their employee s conduct on social media. Social media and free speech What can be done when an employee conducts herself on social media in a way that is inconsistent with the values and expectations of the employer? The conduct may be offensive, inappropriate or simply controversial. For example, it may relate to the employee s religious or personal beliefs, as was the case in Smith (above). Employers are not obliged to disregard conduct simply because it occurs outside the workplace. The Employment Appeal Tribunal has as early as 1976 recognised that conduct does not have to occur in the course of actual work, or at the actual work place, or even be connected with the work for it to have a bearing on the employment relationship. Provided, in some respects, the conduct affects, or is likely to affect the employee the employee when he is doing his work, then it is conduct which has a bearing on the employment relationship (Singh v London Country Bus Services Ltd). Important factors in deciding whether the employment relationship is affected are the nature of the conduct and where the conduct takes place. If it is not private in nature and can be readily identifiable as linked to a particular employer then the potential case for disciplinary action is stronger. For example, inappropriate comments made on Linkedin or Facebook, where an individual s employer may be listed on his profile would be public and linked to the employer. Where the conduct is ostensibly private and cannot be obviously linked to the employer, disciplinary action would normally be inappropriate. In those circumstances an employer should then ask whether the conduct, now known to the employee, has, or may have, an impact on the employee s ability to do his job. In Gosden v Lifeline Project Limited the employment tribunal upheld the dismissal of a drugs welfare worker who expressed sexist and racist views in a private email sent from his home computer to that of a friend. The deciding factor for the tribunal was the nature of the email. It could be forwarded which meant that Gosden had no reasonable expectation that it would be kept private. This principal extended to Facebook, where a tribunal upheld the dismissal of a shift manager as a result of comments he had made on Facebook that were abusive of two customers. The tribunal held that messages posted on Facebook even if posted to a closed readership of friends would no longer be considered private. However, as in the case of Smith (above), tribunals will look at what effect, if any, the communications have on the employer as well as the nature of the communications and whether it was public or private. 4
Social media and misconduct If an employer is faced with a situation where an employee openly criticises an employer in a social media outlet, by for instance placing a negative or rude comment about their boss on Twitter of Facebook, what options are open to an employer to address this conduct? Where the comments are obviously critical and public, the employer can argue that they are likely to bring the organisation into disrepute or damage its reputation. In those circumstances employers should be able to demonstrate the damage to their reputation and the damage must be more than merely fanciful for it to warrant action. For instance, employers should not assume that all online comments are necessarily viewed by thousands of people, or that because they do not agree with the views expressed that they are automatically damaging. Employers can also argue that the posting of such communications is a serious breach of the duty of trust and confidence that is implied into all employment contracts. The principles that will apply here will be similar to those considered in relation to employees whose private conduct is considered by their employer to be inappropriate (see above). A key consideration for the employer will be whether there is anything in the nature of the employee s role which made the posting incompatible with his continued employment. In most cases, this will be difficult to demonstrate. However, in the case of senior employees, more significance may be attached to their public comments and there may be higher expectations of their standard of behaviour due to their greater responsibilities. Social media and bullying Unfortunately, bullying and harassment is becoming increasingly common on social media outlets. Some conduct may already breach an employer s policy on workplace bullying and if so, an employer should treat this conduct in the same way as it would treat conduct happening in the workplace. Because employers are vicariously liable for the actions of their employees, they will need to consider where the line is drawn between action falling within the course of employment and action outside of the course of employment. Tribunals have taken a straightforward approach to cases concerning activity within the workplace, interpreting those words in their ordinary sense. Where bullying happens outside of the workplace, the question is whether there is a link between the setting in which the act occurred and the employment. Acts that occurred at post-work drinks and a work leaving party were held to be in the course of employment (Chief Constable of the Lincolnshire Police v Stubbs). However, in contract, acts that occurred on a family fun-day arranged by the employer and to which staff were accompanied by family and friends was not considered to be an extension of the work place (Sidhu v Aerospace Composite Technology Ltd). Tribunals are likely to approach comments directed at specific employees on a social media site in a similar fashion and where those comments relate to their conduct in the workplace and their employment, there is likely to be a case to answer. Social media - palliatives Employers are advised to have a clear social media policy that is brought to all employees attention and is readily available in a staff handbook or on the intranet. This sends a clear message to employees about company expectations for employee use of social media and is a necessary starting point. A Social Media Policy should include appropriate restrictions covering: employee use of company intellectual property assets and confidential and privileged information; 5
employee use of third-party intellectual property; protection of third party confidentiality and privacy; prohibitions on harassment of other employees; prohibitions on discrimination; prohibitions on defamation and disparagement. Companies who encourage social media use by employees for marketing, recruiting corporate communications and other business purposes may also wish to include terms that state explicitly that an employee must preserve good business relationships and promote a positive corporate image by: specifically prohibiting defamation through social media agreements with employees amending policies to ensure that employees understand that social media message may reflect on their employer; consider requiring employees to state in their social media postings that their views do not necessarily reflect the views of the company. We recommend that legal advice is sought on specific cases before disciplinary action is taken to ensure that any action is appropriate in the circumstances and proportionate to the conduct in question. Employers need to be careful, especially in relation employee s personal views that they do not inadvertently discriminate because of religion, belief or sexual orientation. 6
Seminars and lectures In order to meet the needs of organisations and companies that endeavour to keep abreast of their duties and obligations as employers the employment department at Bindmans LLP offers a range of seminars and lectures. These events can be tailored to the specific needs of your organisation and provide an excellent way to improve your knowledge of employment law rights and obligations. Please contact Shah Qureshi, head of our Employment law team on 020 7833 4433 or email s.qureshi@bindmans.com if you have any particular training requirements. Employment law for executives and professionals We have provided specialist advice to executives and professionals for many years and have significant experience in this complex area of law, so we understand how stressful employment related issues are. Our solicitors recognise the importance of acting quickly and assertively when dealing with your case. Whether your concerns are about highlighting wrongdoing, seeking financial compensation, or minimising losses to your future career prospects, we have the skills necessary to represent you and maximise your prospects of achieving a positive result. For further information please contact Shah Qureshi, head of our Employment law team on 0207 833 4433 or email s.qureshi@bindmans.com or another member of our Employment law team. Bindmans LLP 236 Gray s Inn Road, London, WC1X 8HB T 020 7833 4433, W www.bindmans.com The contents of this newsletter are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this newsletter. Bindmans LLP 2013. 7