01 June 2024
Nicola Mullineux, senior employment specialist for Peninsula, discusses three recent thought-provoking employment tribunal outcomes
Dismissal for reposting social media meme was unfair
In the case of C Smith v Turnock Ltd, the employment tribunal (ET) had to consider whether it was reasonable to dismiss an employee for sharing a social media meme that mocked management styles.
The claimant reposted a meme onto her Facebook page which showed the figure of a woman blindfolded and sat in front of another figure, also blindfolded. Above the woman are the words “We’ve all had jobs like this…” and below her are the words “How management act after you and your co-workers clearly point out the issues at work”. The claimant’s Facebook account states that she works for the respondent.
The respondent saw this post and believed that it was disparaging to management and the company itself. It also concluded that it was in breach of the company policy on social media and internet use.
The following day, the claimant was called to a meeting which was held later that same day. When the post was shown to the claimant, it was the respondent’s position that the claimant denied putting it on her Facebook page. The claimant was dismissed for gross misconduct. Only patchy notes were taken of the meeting.
While the claimant appealed, the original decision stood. The claimant then brought a claim for unfair dismissal.
The ET found that it was difficult to say whether anybody looking at the meme would directly link it to the claimant’s working environment. In any event, they found that it was not directly critical of the respondent and made no comment on the claimant’s working environment. The social media and internet policy stated that nothing should be posted on social media which could reasonably be considered to damage the company or adversely affect it. The ET held that it was unlikely the meme would have damaged or adversely affected the company. It would have warranted a discussion with the claimant and perhaps for her to be issued with a warning. However, it did not justify dismissal.
The ET also found that virtually no notice or advanced warning of what was going to be discussed at the meeting was given to the claimant. There were also no minutes of the meeting, nor of the appeal meeting that was also hurriedly convened.
The claimant, therefore, succeeded in her unfair dismissal claim.
This provides a useful reminder for employers to make sure that there’s a policy in place that governs the use of social media by employees. If a situation arises, it’s important to take a step back and consider whether there has been a breach when looked at reasonably, rather than reacting in the heat of the moment. Dismissals for gross misconduct should be reserved for conduct that’s so serious that it goes to the heart of the contract between the employer and employee. This case is also a good reminder of the importance of following a fair procedure. Fully investigating concerns should be the first step. Then, if there are matters which justify progressing to a disciplinary hearing, the employee should be given reasonable notice, the right to be accompanied and given the allegations, plus any evidence, in advance of the hearing.
Protection from detriment for seeking parental leave does not require formal notice
Employees are protected from suffering a detriment because they have ‘sought’ to take parental leave. The Employment Appeal Tribunal (EAT) had to consider, in the case of Hilton Foods Solutions Ltd v Wright, whether informal enquiries about taking parental leave were enough to gain this protection.
The claimant was employed as a logistics / supply chain manager, working for the respondent for a little over a year before being dismissed on grounds of redundancy. Prior to his dismissal, the claimant had informally discussed taking unpaid parental leave to look after his disabled son with his colleagues, including the human resources (HR) department, his line manager and the respondent’s managing director. While speaking to the managing director of his intentions, the claimant was reportedly sworn at and told that he was expected to be in the office “Monday to Friday, 8am-5pm with no exceptions”. This was reported to HR, but the behaviour was dismissed as typical for the managing director. In the end, the claimant didn’t at any time make a formal request to take parental leave.
Following the dismissal, the claimant brought a claim for automatic unfair dismissal on the basis that the real reason for the dismissal was his intention to request parental leave, and not redundancy as the respondent had purported.
At a preliminary hearing, the respondent applied to strike out the claim on the basis that it had no reasonable prospect of success. This argument before the ET was based on the fact a formal request for parental leave was never in fact made, despite the claimant acknowledging that this was a requirement to take the leave. As no formal request had materialised, the claimant had not, the respondent argued, as a matter of law, sought to take parental leave, which is necessary for the legal protection to apply.
This was rejected by the ET. It was held that the claimant had made informal enquiries regarding taking parental leave and made it clear on several occasions that he intended to take it. This was sufficient for the ET to find that the claimant had ‘sought’ to take parental leave.
This was appealed by the respondent on the basis that the legislation required a written application to be made for it to be said that an employee has sought to take parental leave.
According to the EAT, there’s no absolute requirement under the legislation for an employee to give notice for them to have ‘sought’ to take parental leave. The word ‘sought’ is an ordinary English word and in this regard, it should be given its ordinary meaning. Whether or not an employee had sought to take leave under the legislation was therefore a question of fact. Had it been intended otherwise, the legislation would specify that the giving of notice was required for the protection against dismissal to apply, rather than using ‘sought’ instead.
Changing employee terms must be for a business need and not just a want
The case of Mrs A Perkins v Marston (Holdings) Ltd is a useful reminder that if an employer is considering making any changes to terms and conditions of employment, it needs to be for a justifiable business need.
The claimant, a mother of two children, was told that because of a restructure she would now need to travel significant distances to attend face-to-face meetings. There was to be no reduction in the work to be completed by her, but rather a change to the types of tasks that she was required to undertake. The claimant explained that while she could travel reasonable distances, she would be unable to find childcare for extended periods of time that would allow her to leave early in the morning and return late in the evening.
The claimant was informed during the consultation process that her options were to either have the change enforced upon her by way of ‘fire and rehire’ or to be made redundant. The claimant was told that because of the seniority of the role, she was now expected to travel further because it was the culture within the business and because it would break down barriers. At the second consultation meeting, the respondent was unable, however, to provide any specific examples of barriers that were created by the claimant’s lack of travel; instead it was reiterated that it was the company’s culture to travel to meetings.
The claimant was provided with notice of redundancy. A grievance and appeal were both lodged by the claimant, but they were both unsubstantiated.
The claimant brought claims of indirect sex discrimination and unfair dismissal.
The ET found that the requirement to travel significant distances would put women, as primary carers, at a particular disadvantage. While the respondent argued that the requirement could be justified because of business efficiency and staff morale, this was rejected by the ET. There was no evidence that restricting travel for the claimant would be detrimental to the running of the respondent’s business. The claimant was, therefore, successful in the indirect sex discrimination claim because the ET found that it was not proportionate to ask her to travel significant distances to achieve the goals of business efficiency and staff morale. The ET said: “Instead, it appears that this was the culture within the respondent and something that the respondent wanted but not what was needed.”
The claimant argued that there had been no reduction in the work she performed and that it was not a true redundancy situation. The ET agreed as the definition of ‘redundancy’ was not met. The respondent didn’t cease to carry on the business for the purposes of which the claimant was employed or in the place that the claimant was employed. The claimant was dismissed because she wouldn’t travel significant distances following the respondent’s reorganisation. The ET found that the claimant was, therefore, unfairly dismissed because the business hadn’t demonstrated a fair reason for the dismissal or shown that there was sufficient reason to enforce the need for significant travel.
This article feautured in the June 2024 issue of Professional.