Employment Law Snapshot

Welcome

Welcome to Issue 4 of my Employment Law Snapshot.

I have to confess that this week has been a bit of a televisual challenge for me at the end of the working day. The thing is – my mum has been staying at Tibble Towers for the last couple of weeks. As such, I have been subconsciously tortured with the goings on in Coronation Street, Emmerdale and EastEnders and of a collection of toffs who were apparently ‘made’ in Chelsea but now appear to be living in L.A.

At one point, it took me a while to realise that my mum was flicking between two of these programmes, when I thought that I heard quite possibly the poshest woman alive (I think she was called Bunky or Binky) talking about going on a date, only to glance up to see Paddy McGuiness sitting on a camping stool in Manchester talking about drinking a warm beer!! Although I think I’d prefer watching a combination of Coronation Street and Made in Chelsea, it was all getting rather confusing.

My celebrity based torture continues as I also await the announcement of the next z-lister who’ll be learning to waltz on Strictly Come Cringeworthy – although I’ll keep my opinions about them off social media, because we all know how dangerous that can be….. Don’t we?

The Legal Stuff

This week’s case is called Smith v The British Waterways Board.

Mr Smith was a manual worker employed by British Waterways. He worked in a team of eight operatives who were responsible for the maintenance of canals in Scotland. He was employed by the company for eight years until his summary dismissal for gross misconduct.

By way of background, Mr Smith’s team of canal maintenance operatives worked on a rota system which meant that he was expected to be on standby for seven days, every five weeks. The company rules said that employees were not allowed to drink alcohol during their standby period.

The issue that led to Mr Smith’s dismissal was because of a number of comments he made on Facebook.

This problem came about because Mr Smith had lodged grievances about his team leaders. However, one of Mr Smith’s team leaders, in response to the grievance and to show that the issues were not “one-sided, provided the company with pages that he had copied from Mr Smith’s Facebook page.

The Facebook comments were posted two years earlier by Mr Smith. Interestingly, Mr Smith’s manager had known about them for over a year and had discussed them before with the company’s HR department.

One post in particular related to a comment that Mr Smith made in relation to drinking alcohol whilst on standby. It said: “On standby tonight so only going to get half p***** lol”. The subsequent investigations also discovered other Facebook comments which made derogatory comments about his managers and work in general.

The company’s social media policy did not allow “action on the internet which might embarrass or discredit British Waterways (including defamation of third parties, for example, by posting comments on bulletin boards or chat rooms)”.

Mr Smith was suspended and eventually dismissed for gross misconduct by British Waterways. Mr Smith accepted that he had posted the comments but in his defence, he said that the derogatory comments were banter and he had not been drinking whilst on standby – the comments just formed part of a running joke with colleagues.

The company did not accept Mr Smith’s arguments and sacked him for making the derogatory comments and because he had posted that he had been drinking alcohol whilst on standby. The company concluded that his comments undermined the confidence that the company, other employees and the public would have in Mr Smith’s ability to perform his job.

Mr Smith brought a claim in the Employment Tribunal for unfair dismissal.

Mr Smith won.

The Employment Tribunal decided that British Waterway’s decision to dismiss Mr Smith fell outside the band of reasonable responses which a reasonable employer might have taken. The Employment Tribunal said that the company had not taken into account the fact that the company had been aware of the Facebook comments for some time and done nothing about them, as well as Mr Smith’s previous unblemished record. As far as the allegation about drinking whilst on standby was concerned, the Employment Tribunal said that the company had failed to take into account the fact that there hadn’t been an emergency on the night in question, so no harm was done.

British Waterways appealed.

British Waterways won.

The Employment Appeal Tribunal decided that the original tribunal had made a mistake by substituting its own views in place of the company’s, when it decided that they had not properly taken into account the mitigating factors. When it comes to unfair dismissal law, the Employment Tribunal cannot do this – they are only allowed to decide whether an employer’s decision falls within a range of reasonable responses; not whether they would have come to the same conclusion.

So, the lesson from this case remains that many employees are still incredibly naïve when it comes to what they are willing to put on social media. If their employer has a good social media policy in place and the employee says something that is either derogatory about their colleagues or their employer or could bring them into disrepute – they are putting their jobs at risk.

I think these types of cases are going to be around for a long time…

And Finally…

If your business isn’t performing as well as it should be at the moment, you might want to take a look at your CEO’s face; not to check if the stress of it all is getting to them – but to see if they have the necessary chiselled features for the job!

This is because a professor from The Rollins College in America has just completed a study which has found that there is a strong link between a company’s profits and the shape of its chief executive’s face (but only if he’s male). This is because male leaders who are successful usually have a wider than average face, which makes them appear more dominant and powerful, according to the study.

Apparently, another study from Sussex University has come up with similar results for FTSE chief executives.

On a similar note, a company which provides Emotional Intelligence training called Talentsmart has also reported that business leaders who spread their arms apart and show the palms of their hands while talking, are much more successful than leaders who don’t use these gestures.

I’m confident that my new chin implant and bizarre arm waving skills will lead to my inevitable promotion to chief executive of a PLC in no time at all……. What could possibly go wrong?

Until next time.

Darren