Employment Law Bulletin October Part 2

28th Oct 2016

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.

Inquiry into Corporate Governance

An inquiry launched by the Business, Innovation and Skills (‘BIS’) Committee is shining the spotlight on corporate governance.

Views are being sought on executive pay and directors’ duties. Also included is a look at the composition of boardrooms; including worker representation and the gender balance in executive positions.

According to the Chair of the BIS Committee, Iain Wright MP:

‘…Good corporate governance shouldn’t be a hindrance to business; it can contribute to companies’ long-term prosperity and performance as well as showing to the world that a business is transparent, accountable and responsible.’

The deadline for written submissions via the Corporate Governance inquiry page is 26 October 2016.

The importance of being client
CT Plus (Yorkshire) CIC v Black and others

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…

Okay, so it’s Halloween. But with Christmas being just around the corner, it seems only right to spare a thought for hard-working elves.

It turns out that zero-hours contracts are the way forward for this lot – or for some, at least. The Guardian reported that one Center Parcs is recruiting a small number of elves who are prepared to enter into this sort of casual arrangement. For some of Santa’s crew this means they’ll only work when they are needed during busy periods.

For all the criticism that lands at the door of zero-hours contracts, the seasonality of certain jobs and industries is one big reason for their appeal. If employers are happy, and workers are happy – and, let’s face it, you can’t get much happier than an elf – then there’s an argument that these ‘as-and-when’ arrangements deserve to play a part in modern workplaces.

But according to a poll commissioned by the union, Unite, more than six in ten people in the UK want zero-hours contracts to be banned. With that in mind, the future of these agreements may not be looking all that… elfy!