REWARD
contract law, and was heard in a civil court, rather than in the ET system. Under various staff handbooks and the civil service code of pay and conditions, civil servants who were trade union members had the benefit of a ‘check-off’ facility for many years. This allowed them to authorise the deduction of their union membership fees from their salaries at source. However, this was withdrawn across several government departments without consent from, or consultation with, those affected by this change. Separate cases were brought successfully in relation to this withdrawal, where it was claimed there was a contractual entitlement to the check-off and the unilateral withdrawal of it was a breach of contract. Three separate cases were brought before the High Court. On appeal, they were brought together to be heard. In each of the cases, the High Court held that the check-off arrangements were in fact a term of the individual employees’ contracts of employment. It also held that any variation to their contracts of employment couldn’t be treated as having been accepted due to the fact the employees had continued to work after the change, and the breach of contract hadn’t been waived by any of the claimants. The respondent appealed these decisions, arguing that the only proper conclusion on the fact which should be made in this matter was that the individual employees had accepted the variation and waived any breach. This was rejected by the CoA. The employer, it said, has to show that there had been unequivocal acceptance of a variation in order for it to be deemed as accepted. If, the CoA went on, all that had happened was that the employees had continued to work for over five years and nothing else was done, it might have been possible the acceptance had occurred at some point during that time. However, this wasn’t the case. In each of the three cases before the CoA, the relevant union had organised a protest against the variation. A collective grievance had also been raised on this issue to a government department and litigation was even brought against another. It made no difference, it was held, that these protests took place before the variation had been implemented. Nor did it matter that the employees had set up direct debits as an alternative means of paying their fees, as the facts couldn’t lead to the
to a private life and correspondence under Article 8 of the European Convention on Human Rights (ECHR), as well as her right to freedom of expression under Article 10 of the ECHR. The ET made it clear it agreed with the employer’s assessment that the posts were offensive, inflammatory and racially divisive. While the right to freedom of speech must be vehemently protected, the ET pointed out that “comments which are inflammatory and / or offensive risk falling outside the parameters of free speech”. In re-posting content, the claimant was ‘owning’ it, according to the ET, and the claimant should have been aware they would be provocative and offensive to many of her colleagues and friends. As a result, the ET found that the claimant had deliberately acted in a way she knew would be racially divisive. The dismissal was found to be substantively fair. However, it was procedurally unfair. This resulted in a significant reduction to the eventual award due to the claimant’s conduct and contributory fault. Her claim for race discrimination also failed, as the ‘reason why’ the dismissal had happened wasn’t in relation to the claimant’s race but due to her misconduct. Turning to the alleged breach of Article 8, the ET asked itself whether it was reasonable for an employer to rely on private Facebook posts for disciplinary purposes. The respondent disputed the application of Article 8, relying on another similar ET case (Crisp v Apple Retail Ltd). There, the ET concluded that the employee didn’t have a reasonable expectation of privacy in relation to Facebook posts, as despite using the ‘private’ settings on his account, she knew the posts could be shared more widely. The ET found it was reasonable to rely on the posts, especially considering the respondent’s social media policy, which explicitly warned that private posts were at risk of wider circulation and disciplinary action could result if posts breached that policy. The ET found it especially significant that the claimant regularly re-posted content, interacted with those beyond her ‘friends’ list and was aware of (and welcomed) the fact that her ‘friends’ routinely re-posted her content. Based on the above, the ET concluded that the claimant could have no reasonable expectation of privacy. n
conclusion that the variation had been accepted: the employer was required to show more than the mere passing of time. Webb v London Underground The question of whether a claimant’s Facebook posts could be used as evidence in disciplinary proceedings was addressed by the ET in this case. They had to decide whether there isn’t a reasonable expectation on the employee’s part that their posts would always be private. The claimant was employed by the respondent for several years, most recently as a train driver. As part of her role, she managed up to 250 people of diverse cultural and ethnic origins. In June 2020, the claimant added several posts to her Facebook page relating to the death of George Floyd in the United States and the Black Lives Matter movement, including a ‘meme’ of George Floyd and another of murdered soldier Lee Rigby from 2013. Her page identified her as an employee of the respondent, and many of her ‘friends’ were also employees of the respondent. However, the page wasn’t used for any work purposes and was set as a ‘private’ account. This page was sent to the claimant’s manager who deemed the posts to be offensive, inflammatory and racially divisive. There were also other reports within the depot that both her managerial peers and those she managed were upset by the posts and comments below them. Despite later deleting them, the posts were shared widely on Twitter and WhatsApp, far beyond the claimant’s ‘friends’ on Facebook. The claimant was dismissed following a disciplinary procedure. The posts, the respondent deemed, were in breach of its policies and guidelines in relation to employee conduct and their activities on social media. The claimant appealed the dismissal. In the view of the appeal chair, the claimant was ‘entirely unrepentant’. This influenced the way they questioned her, which gave the impression the outcome had been pre- determined. The fact the appeal chair hadn’t read any of the material gathered for the disciplinary hearing was also likely to suggest this. The appeal was not upheld, and a brief explanation of the reasons was provided. The claimant brought claims for unfair dismissal and race discrimination. She argued that her dismissal and the respondent’s conduct breached her right
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| Professional in Payroll, Pensions and Reward |
Issue 93 | September 2023
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