Welcome to Walbrook Law’s October 2016 employment bulletin. This month we look at recent cases involving rates of pay and reasonable adjustments, Acas certificates and future claims, unfair dismissal and social media use, and TUPE.

Another notable development is that this autumn there is due to be a new mechanism by which the public at large can read all about employment tribunal cases. The Courts and Tribunals Service announced earlier in the year that employment tribunal decisions will be placed online. Those decisions are not currently as readily available as those of higher courts, which have been online for some time.

Of course this works both ways. Employers who win cases will have that fact known. For those who don’t, there may well be greater publicity around mistakes and bad judgment calls. It will be interesting to see the extent to which the online availability of tribunal decisions will affect each party’s negotiating position in the run-up to a hearing. Will we see an increased appetite for, or more resistance to, settlement?

The duty to make reasonable adjustments can tie employers up in knots. What is reasonable in one case won’t necessarily be reasonable in another. It really comes down to how far the employer should go to combat the disadvantage that the employee has been put to at work because of their disability.

Mr Powell was disabled because of a back injury. His employer gave him a lesser role but didn’t cut his pay. That arrangement lasted for nearly a year until the employer told Mr Powell that it would only continue to employ him in that role at a reduced rate of pay. Mr Powell didn’t agree to that and was dismissed.

Maintaining the original level pay was a reasonable adjustment in this case, said the tribunal and the Employment Appeal Tribunal (EAT). However, the EAT made it clear that it won’t always be reasonable to maintain a pre-existing pay level - it will come down to the circumstances, including the ongoing financial considerations. In this case, Mr Powell had been in the new role, paid at the old (higher) rate, for almost a year. He expected the arrangement to be long-term. That was all relevant to the reasonableness of withdrawing the benefit of higher pay. Notably, the discontent of other employees was not a good enough reason to reduce pay in these circumstances.

From 1st October 2016, the following new National Minimum Wage rates came into force:

For workers aged 25 and over, the national living wage of £7.20 per hour continues to apply.

Before someone can bring a claim in the employment tribunal they must usually have first notified Acas. A conciliation period follows, during which settlement is explored. If the case isn’t settled within the conciliation period, Acas issues a certificate to that effect. It’s at that point the Claimant can take their claim further.

In Compass Group v Morgan there was a question over which claims were and were not covered by the Acas certificate. Could the tribunal hear a constructive dismissal claim where the resignation happened after the conciliation certificate had been issued (meaning it could not have been contemplated when the certificate was issued)?

Yes, held the EAT. There is flexibility in the rules to enable events that happened post-certificate to be covered by it. However, the issues need to be connected. In this case there was a sequence of events. Ms Morgan initiated the early conciliation procedure in respect of her grievance, which was about having been told that she would be working at an alternative location and in a less senior position. Although she didn’t resign until after the early conciliation certificate had been issued, there was a connection between her constructive dismissal claim and the complaints that had formed part of early conciliation.

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.

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 26th October 2016.

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.

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