Employer Not Liable for Employee’s Offensive Social Media Posting on Personal Account

Precedential Decision by Judiciary or Regulatory Agency

The Employment Appeal Tribunal (EAT) provided useful clarity on when an act by an employee is done “in the course of employment” making the employer liable. The claimant had seen a colleague’s social media post featuring a “golliwog” (a racist caricature), which was unquestionably offensive, but which was posted outside of working hours. The EAT upheld the Employment Tribunal’s decision, and found that the posting of this image was not done in the course of employment. However, it emphasized that this issue was determined on a case-by-case basis, and very much dependent on the facts. Indeed, employers have been held liable for employees’ social media use in other cases. Therefore, employers should not assume too hastily that any use of social media will fall outside of the employment context.

Holiday Pay for Part-Year Workers Cannot be Pro-Rated

Precedential Decision by Judiciary or Regulatory Agency

On August 6, 2019, the Court of Appeal (CoA) held that all part-year or zero-hours workers employed under permanent contracts should receive 5.6 weeks’ holiday pay, using the average rate of pay over the 12-week period immediately before the holiday as the basis for this calculation. The claimant, a visiting music teacher employed under a zero-hours contract and working 32-35 weeks each year, argued that, as a worker, she should be entitled to 5.6 weeks’ statutory holiday entitlement. The CoA agreed: if the Claimant worked for 32 weeks in one year, she should be paid 5.6 weeks’ holiday pay, which would (in this case) represent 17.05% of her annual earnings. The common commercial practice of calculating accrued holiday entitlement at a rate of 12.07% of hours worked was incorrect in these circumstances, as it did not equate to the 5.6 weeks’ holiday entitlement.

Considering Private Correspondence in Dismissal Was Permissible

Precedential Decision by Judiciary or Regulatory Agency

On May 14, 2019, the European Court of Human Rights found it is permissible under the European Convention on Human Rights (ECHR) to consider private messages during a dismissal hearing in some cases. The employee sent a series of harassing and threatening messages from a private account to a colleague during working hours. The police passed these messages to his employer, who dismissed him. The employee argued that the employer should not have considered this material as it breached his ECHR Article 8 right to respect for private and family life. The court decided that the employee could not reasonably have expected that the communications in question remain private because: (i) he knew his employer was aware of the issue and had concerns about his conduct so it was no longer “private;” and (ii) the employee had not challenged the use of the private communications during the disciplinary hearing and had, in fact, voluntarily provided further private communications.

Parties Entitled to Opportunity to Challenge Stereotypical Assumptions on Which a Decision is Made

Precedential Decision by Judiciary or Regulatory Agency

On June 28, 2019, the Employment Appeal Tribunal found that where courts make a decision based on stereotypical assumptions, particularly where those do not form part of a party’s case, that judgment would be unfair. A party should have the opportunity: (i) to challenge the existence of such stereotypical assumptions; and (ii) to dispute that the decision-maker held such views and/or was influenced by them in his decision-making. The case was remitted to a freshly constituted employment tribunal in order for this to happen. This case is a warning to Employment Tribunals and Courts about how they arrive at their judgments, but is also a useful reminder that employers’ decisions should not be made without any employee having a full opportunity to understand and respond to the points against them.

Supreme Court Revises Test for Evaluating Post-Termination Restrictions

Precedential Decision by Judiciary or Regulatory Agency

On July 3, 2019, the UK Supreme Court held that unenforceable words within a post-termination restriction on working for a competitor could be struck out or “severed” from the rest of the restriction, so that the noncompete became enforceable. The Supreme Court reformulated the test for severance as requiring that: (i) the court can remove the offending words without needing to add to or modify the remainder of the covenant; (ii) what remains of the agreement must continue to be supported by adequate consideration; and (iii) the removal of the offending provision must not generate any major change in the overall effect of the post-termination restrictions for the contract (this final limb being a new test). This decision may open the doors to more employers trying to enforce restrictions that have a couple of words that may be deemed to be too broad, on the basis that they can be severed, but further case law will need to develop what constitutes a “major change” for the final limb of the test.