Category Archives: tribunal

The perils of social media


There are a lot of good things about social media, the speed, the scope, the varied audience and the immediacy of communicating a message to large numbers of people and businesses around the world.

One major problem with both social media, emails and the internet is the simple fact that it is very difficult to take back or delete comments, messages or data made by individuals which may come back to cause them or others harm.

A recent employment tribunal case highlights this very issue.

Mr Smith was sacked by his employer, the British Waterways Board for gross misconduct once evidence came to light that 2 year’s previously he had posted derogatory comments about his supervisors and admitted drinking alcohol whilst on standby on his personal Facebook account.

This was despite Mr Smith having an unblemished service record and the company being aware of his misconduct for some time.

Mr Smith described his supervisors as “w******, f*****, p***** and c****” on Facebook.

The company found that Mr Smith had made derogatory comments about the company as an employer and had claimed to be drinking alcohol whilst on standby, bringing his capabilities into question and leaving the company open to condemnation in a public forum.

The company had a social media policy which prohibited any action on the internet which might embarrass or discredit the company, including defamation of third parties including posting comments on bulletin boards or chat rooms.

Despite this, the employment tribunal decided that the dismissal was unfair on the basis that the decision to dismiss Mr Smith was “outside the band of reasonable responses which a reasonable employer might have adopted”.

The Employment Appeal Tribunal disagreed and found the dismissal to be fair on the basis that it was fair to dismiss Mr Smith for his comments on Facebook alone, even though they were two years old and the employer had knowledge.


This case follows previous decisions (see and is ultimately a strong reminder to employers on the importance of having and maintaining an effective social media policy and to employees of using their brains before posting online at anytime during their employment.

It is also a reminder to employee’s that you shouldn’t bite the hand that feeds you.

It is also good news for employer’s in that a failure to respond to an employee’s earlier act of misconduct will not necessarily mean that they will lose the opportunity to take action at a later date.  It also shows that a well written and policed social media policy can have teeth and save both legal fees and protect businesses from abuse by disgruntled staff.

© OSJ Law Limited

May Employment Law Update

May Employment Law Update

“Lots of people go mad in January. Not as many as in May, of course.”

(Karen Joy Fowler, Sarah Canary)

Hopefully you have kept your sanity in May despite the pressures of work and life generally, whether a business or an individual. If you have, then you will be able to catch up on this brief summary of the latest changes in the ever changing minefield that is UK employment law.

Legal changes

1 May 2014 reminder: deadline for TUPE employee liability information notification increases to 28 days

The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 (SI 2014/16) came into force on 31 January 2014. The regulations make a number of amendments to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE).

One such amendment is to the timeframe for providing employee liability information.

Regulation 11(6)(a) of TUPE has been amended so that the deadline for notification of employee liability information to the transferee is increased, from 14 days to 28 days. This amendment only applies to transfers that take place on or after 1 May 2014.

Early conciliation mandatory from 6 May

Early conciliation becomes mandatory for most types of employment tribunal claims from 6 May 2014. It will make important changes to how limitation dates are calculated and how claims should be presented.

For further information  go to the ACAS website


Employment Law cases round up

Court grants order for imaging and inspection of ex-employees’ computers

The High Court has ordered that an employer may instruct an independent computer expert to inspect and take images from the personal computers of two former employees. The employer was granted the mandatory injunction after information came to light which suggested that the individuals had misused confidential information belonging to the employer during their employment.

The court took into account the fact that it had a high degree of assurance about the strength of the employer’s claim, and that the employer had taken years and used significant resources to create the confidential information at the heart of the proceedings.

(Warm Zones v Thurley and another [2014] EWHC 988 (QB).)

Receiving pay was not a prerequisite for employment status

The EAT has held that an individual can still be considered an “employee” for the purposes of the Employment Rights Act 1996 even if they have not exercised their right to be paid.

The individual, the Managing Director and sole shareholder of a company, remained entitled to a redundancy payment from the Insolvency Service under section 166 of ERA 1996, despite not receiving pay for two years. She had elected to forgo her salary in an attempt to keep the company afloat.

(Secretary of State for Business, Innovation and Skills v Knight UKEAT/0073/13.)


Statutory holiday pay should include a sum in respect of commission

The ECJ has held that, where a worker’s remuneration includes contractual commission, determined with reference to sales achieved, the Working Time Directive precludes a national law that calculates statutory holiday pay based on basic salary alone.

If commission payments are not taken into account, the worker will be placed at a financial disadvantage when taking statutory annual leave as no commission will be generated during the holiday period. In such circumstances, the worker might be deterred from exercising the right to annual leave. This would be contrary to the directive’s purpose.

This case was referred to the ECJ by the Leicester employment tribunal. The tribunal recognised that, under the natural wording of the Working Time Regulations 1998 and the week’s pay provisions of the Employment Rights Act 1996, the claimant was not entitled to a sum in respect of commission in his holiday pay. The case is now likely to return to the tribunal to consider whether the domestic legislation can be interpreted in line with the ECJ’s decision and, if it can, the level of holiday pay to which the claimant was entitled.

(Lock v British Gas Trading Ltd C-539/12.)

LLP member was “clearly” a worker and entitled to whistleblower protection

The Supreme Court has held that a former equity partner of a law firm incorporated as a limited liability partnership (LLP) was clearly a worker and therefore eligible to bring a whistleblowing claim against the LLP.

Overturning the decision of the Court of Appeal, the court found that the LLP member fell within the definition of worker in section 230(3) of the Employment Rights Act 1996, as she could not market her services as a solicitor to anyone other than the LLP and was an integral part of its business.

It was not necessary for there to be an element of subordination in order for worker status to be made out. While subordination may sometimes be an aid to distinguishing workers from other self-employed individuals, it is not a universal characteristic of being a worker.

The court also shed some light on the meaning of section 4(4) of the Limited Liability Partnerships Act 2000, which has been notoriously difficult to interpret. It does not mean (as the Court of Appeal found) that LLP members can only be workers if they would also have been workers had the LLP been a traditional partnership under the Partnership Act 1890.

The Supreme Court’s decision is significant as it means that LLP members will benefit not only from the statutory protection from detriment available to whistleblowers, but also from a range of other rights available to workers. These include the right to paid annual leave and the right to be auto-enrolled in a pension scheme.

(Clyde & Co LLP and another v Bates van Winkelhof [2014] UKSC 32.)

Source: The Practical Law Company

If you need further advice on this blog whether you are an Business or an Individual, please send an email, ( or call me, on my mobile 07767 166705 or 01580 712718 (local office number) or 0207152 6550 (London office number).

© OSJ Law Limited

April Employment Law Update

April Employment Law Update

April is normally a very busy time for employment lawyers, as you will see from the following changes to employment law which came into effect on 6 April 2014, together with the cases below. April was also a busy month for me and included successfully representing a commercial client at a Judicial Mediation in which an agreed settlement was negotiated which saved my client over £30,000 in legal costs alone.  Sometimes it is good to talk!

Legal changes

6 April 2014

  • Abolition of discrimination questionnaires.

What does that mean now ? Acas has published good practice guidance on how employers should deal with questions regarding discrimination in the workplace after statutory discrimination questionnaires are abolished.

  • Mandatory pre-claim Acas conciliation.

There is now a four-step procedure for early conciliation (EC) through Acas before an employment tribunal claim can be commenced. Transitional provisions cover the period between 6 April and 5 May 2014 during which EC will be available to prospective claimants. EC will be mandatory for claims presented on or after 6 May 2014.

  • Increase to employment tribunal fees.

The Courts and Tribunals Fees (Miscellaneous Amendments) Order 2014 (SI 2014/590) will re-categorise a number of claims as “Type B” claims, which attract a higher fee. This is to remedy what the government has identified as a mistake in the original legislation which categorised certain claims incorrectly as “Type A”.

  • Financial penalties for losing employers.

Tribunals now have the power to order that a losing employer pay a financial penalty in specified circumstances. This will apply in cases presented on or after 6 April 2014.

  • Abolition of the Percentage Threshold Scheme.

The Percentage Threshold Scheme enables employers to reclaim Statutory Sick Pay (SSP) from HMRC, where the total SSP paid in a month exceeds 13% of their Class 1 National Insurance contributions for that month. A draft Order abolishing the scheme, as part of the government’s review of health at work, was laid before Parliament and approved by the House of Lords on 12 February 2014. It is expected to take effect on 6 April 2014.

  • Abolition of SSP record-keeping obligations.

The Statutory Sick Pay (Maintenance of Records) (Revocation) Regulations 2014 (SI 2014/55) will abolish the obligation on employers to keep specified records of dates of sickness and SSP payments

  • Maximum compensatory award increase.

The maximum compensatory award for unfair dismissals where the effective date of termination falls on or after 6 April 2014 will be increased to £76,574 (or 52 weeks’ gross pay, if lower).

  • Increases to rates and limits.

Several statutory rates and payments will increase on 6 April 2014, including statutory sick pay, maternity pay, paternity pay, adoption pay, and the cap on “a week’s pay”.

  • Increased penalty for employing illegal workers.

The maximum civil penalty which may be payable under section 15(2) of the Immigration, Asylum and Nationality Act 2006 will increase from £10,00 to £20,000 where an employer is found to have employed adults who are subject to immigration control but do not have the right to work in the UK.

  • Changes to TUPE: post-transfer pension contributions.

The Occupational Pension Schemes (Miscellaneous Amendments) Regulations 2014 come into force on 6 April 2014. From that date, transferee employers will have the option to match the transferor’s level of employee pension contributions into a defined contribution scheme, even if they are less than the current minimum of 6%. This is to avoid the situation where employees could be in a more favourable position than they would have been if they had not transferred.

  • MPs added to list of “prescribed persons”.

The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2014 amends the schedule to the Public Interest Disclosure (Prescribed Persons) Order 1999 to make members of the House of Commons (MPs) “prescribed persons” in England, Scotland and Wales to whom a whistleblower may, under certain circumstances, make a protected disclosure.


Employment Law cases round up

TUPE: employees transferred to parent company following share purchase by subsidiary

Normally a share purchase will not be a TUPE transfer, however The Employment Appeal Tribunal (EAT) has upheld a tribunal decision that employees had transferred under TUPE to a parent company following a share purchase by one of its subsidiaries.

The EAT decided that the tribunal had been entitled to find, on the facts, that the share sale triggered a co-extensive but separate transfer to the parent company. In this respect the tribunal had taken account of a statement of intent made by the parent company that employees would be moving over to it, the arrival of its integration team, and the fact that day-to-day control of the transferor’s business activities had passed to the parent company.

The EAT also upheld the tribunal’s finding that affected employees had been entitled to bring claims for failure to inform and consult in their own names. While there had been an employee representative committee, on the facts, the mandate of representatives who had served on the committee had expired some time before the share sale. The ad hoc committees that had continued thereafter had not been mandated by the affected employees to carry out TUPE consultation.

Not sure if TUPE applies ? Take specialist legal advice.

12-month non-competition restriction enforceable against financial adviser

The High Court has held that a 12-month non-competition post-termination restrictive covenant in an agreement between a financial adviser and his employer was enforceable. Under a “goodwill agreement”, the financial adviser had been paid for the goodwill in the client base he brought with him to the firm, but was prevented from working in any capacity in competition with his employer for 12 months after his employment terminated.

The court held that the non-competition restriction was enforceable because the goodwill agreement was akin to a business sale agreement into which the parties had entered with equal bargaining power. It further noted that 12-month post-termination restrictions were common within the financial services industry and were reasonable in cases such as this where there was an exceptionally strong relationship between the employee and their clients.

The court rejected the employee’s argument that the employer had failed to mitigate its loss as it had not put him on garden leave or sought injunctive relief. It concluded that a claim for breach of contract was appropriate in these circumstances where the employer did not want to cause further damage to its client relationships. It ordered the financial adviser to pay damages for the employer’s loss of profit for two years after his departure.

Christian nursery worker brings claim for religious discrimination against her former employer

A Christian nursery worker has brought a religious discrimination claim against her former employer, Newpark Childcare. Sarah Mbuyi alleges that she was dismissed from her position at a nursery in Shepherd’s Bush due to her beliefs, after she was asked whether she would be able to read books to children which featured same-sex parents, and replied that she would not be able to read them. Miss Mbuyi was also accused of harassing a lesbian co-worker with whom she had discussed her religious beliefs.

This case again highlights the conflict between the right to religious belief and the right not to be discriminated on grounds of sexual orientation.

If you need further advice on this blog, please send an email, or call me, on my mobile 07767 166705 or 01580 712718 (local office number) or 0207152 6550 (London office number).

© OSJ Law Limited

SEX (ism) in the City

It would appear that the City of London can still be a tough place for a woman, particularly a bright and highly successful one, as two recently reported tribunal claims show:-–is-vindicated-by-tribunal-8922128.html

Although the two cases were distinct, there are some interesting similarities in both cases.

  • Both were young women – 32 and 42 years old
  • Both were working for top City establishments  – Troika Group and Oppenheimer Europe
  • Both were high earners on six figures salaries
  • Both were clever and driven and highly successful, one a trader the other a broker
  • Both successfully sued for sex discrimination (including victimisation) and unfair dismissal
  • Both were subjected to insidious and casual sexism and derogatory personal comments including being called “miss cokehead” and “Bitch” in communications with clients and senior staff and references to the firm as “Bunga Bunga Securities”.
  • Both were treated less favourably than their male counterparts at work because of their sex
  • Both succeeded in their claims and are likely to receive substantial unlimited compensation
  • Both hired Lawyers to represent and advise them


Despite The Equality Act 2010 and the work of the Equality and Human Rights Commission, it appears Sex(ism) in the City still exists, although to what extent may always remain unclear given that the majority of tribunal claims settle before a hearing.


There are many steps employers can take to limit claims of Sex discrimination by employees:-

  1. Have an Equal Opportunities (EO) Policy which is actively followed and enforced by the company
  2. Provide regular  EO training for managers and staff
  3. Carry out workplace diversity monitoring
  4. Comply with the EOC Code of Practice on Sex Discrimination
  5. Deal with grievances on grounds of sex in accordance with the ACAS Code of Practice and fully investigate any allegations and consider suspension measures if applicable
  6. Respond promptly and sensitively to any submitted questions by an employee under the Equality Act 2010
  7. Take legal advice to protect and limit the legal and reputation risks to your company as soon as you can.


If you are an employee suffering discrimination because of your Sex, you should take the following steps:-

  1. Raise the issues with your line manager or Human Resources and seek to resolve matters informally with your employer if at all possible
  2. If this does not work consider the formal grievance route or consider submitting questions to the employer to help determine whether you have a claim under the Equality Act 2010 (previously known as the Questionnaire Procedure).
  3. Always keep a paper trail/ diary of events and keep copies of any relevant documents/emails/correspondence
  4. Consider issuing an Employment Tribunal Claim if you are unable to resolve your concerns with your employer first.
  5. Take legal advice from a solicitor specialising in employment law

Employee who prevented a definitive diagnosis of his alleged condition was not disabled

In Cox v Essex County Fire and Rescue Service UKEAT/0162/13 the EAT considered whether an employer had not known and could not have been expected to know that an employee was disabled.

The decision

The EAT has upheld a tribunal’s decision that, despite an employee advising that he was suffering from bipolar disorder, the absence of a definitive diagnosis meant that the employer did not know, and could not have reasonably been expected to know, that the employee was disabled.

The tribunal, as the arbiter of facts, had been entitled to find that the employer had asked the right questions and was justified in concluding that the employee was not disabled.

The tribunal took particular note of the fact that the employee had withdrawn consent for his GP and specialist to provide information to the employer’s occupational health service. The case is a reminder to employees of the potential consequences of failing to co-operate with their employer’s attempts to obtain medical advice on their position.


While it involved provisions of the DDA 1995, the EAT’s decision is relevant for claims proceedings under the EqA 2010 and the question of how much, or what, an employer needs to (actually or constructively) know in order for it to know that a person is disabled.

The EAT in both this case and in Wilcox stressed the fact-specific nature of the tribunals’ decisions. In each case the employee had failed to fully co-operate with the employer’s attempts to obtain medical advice on their condition.

In this case, the tribunal considered that the employee wished to establish a causal link between his workplace accident and bipolar disorder, presumably to maximise his claim for personal injury compensation, and that this appeared to have resulted in him withdrawing consent for the disclosure of relevant medical information.

However, the definition of a disabled person is one who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. A mental impairment no longer needs to be clinically well-recognised to render the sufferer disabled, as was originally the case under the DDA 1995.


Therefore, while an employee’s failure to co-operate in establishing a “definitive diagnosis” may mean that an employer lacks the requisite knowledge of disability, does it necessarily mean that it will do so?

The passages of the tribunal’s decision set out by the EAT suggest that it did not consider whether, despite the absence of a definitive diagnosis, there was nevertheless sufficient evidence before the employer at the relevant time from which it ought reasonably to have known that the employee met the statutory definition of being disabled by reason of a mental impairment.

Source: Cox v Essex County Fire and Rescue Service UKEAT/0162/13 courtesy of The Practical Law Company October 31 2013