Employment Law Update September 2021

30 August 2021 Written by Ware & Kay Solicitors Category: Employment advice

This article covers:

Social Media
No Jab, No Job
Discrimination & Hypersensitivity
UK Right to Work
Hybrid Working

Social Media

Can your social media posts get you into trouble at work? You may have heard that England lost the 2020 Euro final 3-2 on penalties. Heart breaking - but then the racist tweets began. Arrests have followed and a high-profile estate agents suspended an alleged racist tweeter.

Does your organisation have a social media policy?
Doubling down on privacy settings isn’t always the solution – screenshots can easily be taken and shared
Workers should check their posts for discriminatory remarks and harassment

If a worker claims unfair dismissal, the Employment Tribunal must consider three aspects of the employer’s conduct as set out in the test in British Home Stores -v- Burchell

Did the employer carry out an investigation into the matter being reasonable in the circumstances of the case?
Did the employer genuinely believe the employee was guilty of the misconduct complained of?
Did the employer have reasonable grounds for that belief?

If the answer to each of these questions is “yes”, the Tribunal must apply the band of reasonable responses test. Did the employer act within the range of reasonable responses open to a reasonable employer?

In Game Retail Ltd v Laws the Employment Appeal Tribunal held that, “Generally speaking, workers have the right to express themselves providing it does not infringe on their employment and/or is outside the work context. That said, we recognise that those questions might themselves depend on the particular employment or work in question.”

In the case of Plant v AP1, a disgruntled worker posted, “PMSL [pissing myself laughing] bloody place I need to hurry up and sue them PMSL”. The worker’s dismissal was found to be fair as the post was in contravention of the employer’s social media policy. This set out the damage that could be caused to the company’s reputation. It reminded workers conversations between friends on Facebook were not private. It concluded that any breach would be taken seriously and might lead to disciplinary action, and serious breaches would be considered as gross misconduct and subject to summary dismissal.

In Austin v A1 the worker – a paint sprayer – had an argument with the MD. The worker shared his feelings on social media. “I don’t think I’m a bad person but I don’t think I have ever felt so low in my life after my boss’s comments today.” The Employment Tribunal held that the claimant had simply expressed his personal opinion. He succeeded in his claim and was awarded a basic award of £3600 and compensatory award of £24,960.

No Jab No Job

Rumour and speculation abound about the role of vaccines in the workplace. Is the Government encouraging employers to crack down on the unvaccinated? Are vegans going to refuse to be vaccinated?

Government ministers recently seemed to encourage employers to set rules that workers be vaccinated. This came up because Google and Facebook in the US have ruled that workers can only access premises if vaccinated.

But there’s no legislation to back up these suggestions. If employers do insist on vaccination, workers may well claim unfair dismissal and evidence of ministers’ comments won’t help the employer.

Would a worker succeed in a claim? It depends on the risk involved in the work setting but employers run the risk of being discriminatory. Workers may claim they’ve avoided vaccination because of belief, religion or disability.

Rather than risk breaking trust with workers another approach is suggested: perhaps workers are vaccine hesitant and need information? Workers want their workplaces to be safe too and are keen for workplace testing and adequate pay for self-isolating.

Could vegans claim a protected belief namely ethical veganism to avoid vaccination (all vaccines are tested on animals)? The Vegan Society encourages everyone to be vaccinated.

Legislation comes into effect on 1 November that workers in care homes must be vaccinated. The only exemption is on the grounds of health reasons. Religious or philosophical belief are not covered.

Discrimination & “Hypersensitivity”

To what extent do workers have to put up with “blunt” comments and “direct” management styles?

In-house counsel, Miss Sithirapathy, claimed she’d been discriminated against by her employer PSI CRO UK Ltd. PSI is based in the UK and Switzerland and provides services to customers involved in clinical trials.

Miss Sithirapathy was employed in London. A Swiss manager, Mr Schmidt, proposed a transfer to the Swiss office. When Miss Sithirapathy queried the salary he said she couldn’t be paid more because of her age. She responded she couldn’t take up the offer anyway –

for personal reasons – and he countered she wasn’t married and didn’t have children. Mr Schmidt went on to relate an anecdote about the tolerance extended to lesbians who worked in the Swiss office.

The following year she sought promotion to senior legal counsel but was told her appraisal, although satisfactory, indicated she wasn’t ready to be promoted: she was still at the beginning of her professional career.

Miss Sithirapathy was informed of a non-legal vacancy in Switzerland. She exchanged emails with Mr Schmidt, said she was keen and resigned from the London branch. She took up a position within Finance and Administration in Switzerland but lost her job after a month in a reorganisation. Subsequently she claimed that during her short time at the Swiss office she’d been sexually harassed. Mr Schmidt was to drive her to an appointment and she found herself outside a lift and about to get into it with him and didn’t immediately understand the necessity. She hesitated and Schmidt said, “What’s wrong? Are you scared?”

Miss Sithirapathy claimed:

direct discrimination because of sex and/or age
sexual harassment
harassment related to age and/or sexual orientation
victimisation

The Employment Tribunal accepted that in Switzerland there’s generally a link between age and salary. Also that Mr Schmidt had personal information about Miss Sithirapathy because it was relevant to relocation costs. He said he’d have made the same comments to a male employee and had mentioned the lesbian anecdote to explain that sexuality or other personal circumstances of employees are not an issue for the company. The Tribunal said Mr Schmidt’s comments were “bluntly put”. Mr Schmidt said of his comments by the lift that he was referring to his driving.

The Tribunal held that Mr Schmidt’s comments were unfortunate and awkward. “However we bear in mind the importance of not encouraging a culture of hypersensitivity or of imposing legal liability to every unfortunate phrase”.

As for her claim of age discrimination, the Tribunal held she was two and a half years into her first legal counsel role and still at an early stage of her career. Her appraisal demonstrated she wasn’t ready for a senior legal counsel role. “The same comments would have been made to someone who was at the same career stage as the claimant, whatever their age. Using the words ‘still young’ in this context was another way of saying the claimant was at the beginning of her professional career and was not a detriment to the claimant.”

Mr Schmidt’s comment, “What’s wrong? Are you scared?” was not conduct of a sexual nature. It was “an awkward remark intended as a joke … Although the claimant felt uncomfortable and intimidated, this comment did not, objectively, have the effect of violating her dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her.”

The Tribunal concluded that the two managers concerned “both have quite direct management styles. Mr Schmidt in particular spoke very bluntly to the claimant … However we have concluded that they did not cross the line such as to amount to unlawful harassment”

UK Right to Work

Employers have the duty to check the immigration and right to work status of all workers before employment or face fines of up to £20,000 and potential criminal liability for directors. But the guidance on checking right to work, the pandemic and the settled status scheme have made everything complicated. Employers have to get to grips with reams of guidance depending on the date of employment and the status of the employee.

If workers are EU citizens they have the right to work if they have either settled status, pre settled status or a work permit. But there are 400,000 outstanding settled status applications and possibly hundreds of thousands of EU citizens working in this country who are unaware they should have applied for settled status. The Home Office granted a concession of 28 days from 30 June 2021 but there may well still be hundreds of thousands who do not have status.

If a settled status application is pending, workers may be able to rely on section 3c leave, although this is by no means clear. This prevents applicants from being regarded as overstayers whilst they await their decision. The uncertainly surrounding this area may lead to a raft of unfair dismissal claims.

At the moment employers can check workers’ right to work status virtually; eg through online meetings. However these arrangement end on 31 August. But working at home is now embedded and commentators wonder whether this virtual scheme should be made permanent.

There is also of course the points system. If employers do not follow this system correctly, here too they risk claims.

Hybrid Working

Many workers have come to value the option of working at home for part of the week. They find they’re more productive and the routine fits well around their lives.

ACAS has issued guidance on hybrid working. Employers opting for hybrid working will need to change contracts of employment with workers’ agreement. Hence it’s advisable to consult – in some circumstances it’s the law to consult with the workforce. Consultation improves relations, builds trust and irons out problems in advance.

When creating a hybrid working policy it’s important to consider: