Professional June 2021

Employment law

the claimant’s site, the SC did not interfere with their ruling. The claimants are now free to return to the ET to have their equal pay case heard. ASDA is still able to make the argument that there is a material difference between the roles which justified the disparity. M Austin v A1M Retro Classics Ltd The ET has ruled that the claimant was unfairly dismissed after posting his frustrations with his employer on social media. Mr Austin was employed by the respondent as a paint sprayer. On 13 February 2020, both parties entered into an argument about the claimant’s poor workmanship which resulted in the respondent becoming agitated and shouting at the claimant. After the claimant returned home that day, he turned to Facebook to vent his frustrations about the argument; one of the posts read: “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 post garnered a number of responses from people attempting to reassure the claimant, some of which were inappropriate and included personal verbal attacks towards the respondent – including homophobic comments. Some days later, on 17 February 2020, the claimant was called into a disciplinary hearing without any real prior notice and without the respondent’s disciplinary policy having been followed. The claimant was dismissed via telephone the next day and later made a claim to the ET for unfair dismissal. The claimant also argued that he was not given the opportunity to be accompanied at the hearing. The ET upheld his claim because the respondent had failed to carry out a proper investigation of the incident and there had been no prior notice given to the claimant that the disciplinary hearing would be taking place. With regards to the former, the respondent attempted to rely on their social media policy which states that employees should only make posts on their personal social media accounts and not make comments which would ruin the reputation of the organisation and those in charge of it. To this the ET expressed that the respondent should have investigated whether the claimant’s occupations and place of work were identifiable on his

Facebook page before calling a disciplinary hearing. The ET went on to say that a “reasonable” employer would have not only done this but also checked the privacy settings of the post and the size of the group who interacted with it – due to the social media policy highlighting the need for “appropriate privacy settings” on employee posts. The ET’s explanation of its decision that it was satisfied that the claimant had not been given enough notice of the disciplinary hearing relates to the claimant’s blatant unpreparedness for the hearing. He had not been given any information of what was being alleged against him; thus, he could not prepare a defence. In all, it was clear that the respondent had not followed a fair procedure before concluding that a dismissal was reasonable. Although the ET upheld the claim of unfair dismissal, it disagreed that the claimant had not been given the opportunity to be accompanied to the disciplinary hearing. The ET found that there was no evidence to show that the claimant had requested to be represented by a trade union or a colleague. ...the respondent had failed to carry out a proper investigation of the incident... Barlow v Horwich Farrelly Solicitors The ET has ruled that a claimant was not unfairly dismissed after being made redundant and having their bumping request denied. ‘Bumping’ is when one employee whose role is at risk of redundancy is redeployed into another employee’s position, meaning that employee will be made redundant instead. The claimant, Ms Barlow, began working for the respondent’s subsidiary, Zest Legal, in 1987 as a secretary. As she progressed through the company, her role changed to that of client relationship and development coordinator in 2011, as well as working as a personal assistant to the head of the company. In 2017, Zest Legal went through

a period of winding down, rendering fourteen staff redundant and redeploying twelve others to existing roles in other departments. During this period, Ms Barlow’s knowledge and expertise proved useful to the company and she played a considerable role in the winding down process which lasted for a period of two years. However, in 2019 after the winding down of Zest Legal was complete, Ms Barlow was informed that her role was at risk of redundancy. As her role was independent, Ms Barlow was told that there would be no selection pool and that the only alternative roles available were lower ranking and which carried lower salaries. Ms Barlow argued that although Zest Legal had wound down, she was still employed by its parent company, Horwich Farrelly Solicitors (HFS), and thus a fair process would call for all others within HFS who had the same role as her to also be at risk of redundancy. She put forward the option of bumping a HFS employee in order for her to move into their role. HFS rejected this, arguing that it had considered the option and had determined that doing so would not be an appropriate action to take. Ms Barlow’s role was made redundant shortly after as she had rejected the lower paid role offered to her. She appealed this decision with HFS unsuccessfully and thus brought a claim of unfair dismissal to the ET. The ET rejected the claim that Ms Barlow had been unfairly dismissed. The fact that she had accepted that a redundancy situation had arisen meant that the ET simply had to consider whether HFS could have considered bumping by creating a selection pool of all its own staff performing the same role as Ms Barlow. The ET held that it was indeed appropriate for Ms Barlow to have been the only one in the selection pool as her role was the only one at risk of redundancy and that an organisation is not legally obligated to bump another employee or consider this as a suitable option. It went on to state that it would have been a reasonable response if HFS had chosen the bumping route but since they did not, for sound and genuine business reasons, it was up to Ms Barlow to show that the decision was unfair. In this case, she had not successfully proven HFS’s decision to be unfair. n

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| Professional in Payroll, Pensions and Reward |

Issue 71 | June 2021

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