Facebook Face-Off

Hot on the tails of press reports of threats of legal action by Lord McAlpine against Twitter account users, comes the case of Smith v Trafford Housing Trust in which Mr Smith was demoted for airing his views on gay marriage on Facebook.

The High Court held that his demotion was a breach of contract. The Court took the view that it was clear that his views on gay marriage were nothing to do with the Trust. Equal opportunities employers have to accept that their staff may have widely different religious and political beliefs which not everyone will agree with. Mr Smith's moderate expression of his personal views on his personal Facebook wall at out of working hours were clearly nothing to do with his employment with the Trust. Also, Facebook (unlike perhaps LinkedIn) was not a work-related context.

Compare that to Gosden v Lifeline in 2011 in which Mr Gosden sent an email from his home computer to a former colleague’s home pc which contained racist and sexist material but telling the recipient to pass it on. He got sacked as a result and could not rely on the his right to privacy under the Human Rights Act.

In the present case Mr Smith was awarded a mere £98. When he was demoted, he could have resigned and claimed constructive dismissal, but chose not to. Mr Smith had agreed instead to work in a different capacity for less money under a new contract with the Trust. His losses for ‘wrongful dismissal’ from his job as a manager were limited to financial losses during the contractual notice period, which came to a paltry £98.

In addition to illustrating the perils of using social media, this case also illustrates that even when a Claimant wins, they may still not win very much at all.  See http://www.reculversolicitors.co.uk/1013.htm 

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Permanent Health Insurance and Dismissal

A minority of employers offer permanent health insurance (‘PHI’) to cover a proportion of their employee’s salary (normally up to 75%) in the event that they go on long term sick leave. However can the employer then dismiss the employee for a reason connected with the long term sick leave?  

In Lloyd v BCQ Ltd, in the EAT this month, Mr Lloyd was dismissed due to ill health. He claimed that BCQ was in breach of an implied term that it would not dismiss him if he lost his PHI as a result. It was not possible to imply a term that BCQ would not dismiss due to long term sick if he would lose PHI cover a result (as per Aspden v Webb's Poultry and Meat) because Mr Lloyd's contract contained an "entire agreement" clause.

In any case, the EAT said that even if such a term could be implied, it would only apply where the dismissal was "without reasonable and proper cause". There was no reasonable prospect of Mr Lloyd returning to work due to his sickness, so it was reasonable proper to dismiss him.

This case will be a comfort to those few employers who offer PHI as a benefit but who still want flexibility to dismiss where appropriate.

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James Carmody

RECULVER SOLICITORS      

Tel: 0207 324 6271 | Fax: 0207 477 2276 | info@reculversolicitors.co.uk

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Unsavoury employees with unsavoury beliefs?

What can you do when you discover that your employee holds unsavoury political opinions? If the employee breaches your equal opportunities policy, you may be able to bring disciplinary action against him. But can you dismiss him anyway?

Discrimination on the basis of religious or philosophical belief breaches the Equality Act 2010. Belief in climate change disaster can be a protected philosophical belief (Grainger plc v Nicholson), though wearing a poppy is not (Lisk v Shield Guardian). In order to qualify as a protected philosophical believe it must be:

·         genuinely held;

·         not be an opinion or viewpoint based on the present state of information available;

·         be related to a weighty and substantial aspect of human life and behaviour;

·         attain a certain level of cogency, seriousness, cohesion and importance;

·         be worthy of respect in a democratic society, and not incompatible with human dignity or in conflict with the fundamental rights of others.

Where does that leave the employee with unsavoury political views? In Redfearn v UK this week, Mr Redfearn was a bus driver dismissed by Serco when he was elected Councillor for the BNP, citing safety concerns about the risk of him attracting attack. He was unable to claim unfair dismissal due to his length of service and his race discrimination claim failed.

The European Court of Human Rights held that the UK does not give adequate protection from dismissal on the grounds of political party membership, that his right to freedom of assembly under Article 11 of the ECHR was infringed and that he should have had protection against dismissal connected to political party membership.

As a result, even unsavoury political views may become protected under the Equality Act 2010. Employees who propound extreme political beliefs may not have protection if they interfere with the fundamental rights of other colleagues, for example. However employers will have to think very carefully when considering dismissal as a result.

Work Smarter: Click here to read about our Employer Protection Scheme to help run your business more efficiently and protect your business against Tribunal claims.

James Carmody
RECULVER SOLICITORS      
Tel: 0207 324 6271 | Fax: 0207 477 2276 | info@reculversolicitors.co.uk
12-16 Clerkenwell Road, London EC1M 5PQ

www.reculversolicitors.co.uk | www.kent-employment-solicitors.co.uk | www.croydon-employment-solicitors.co.uk

Disability Discrimination: Can a tendency to infections amount to a 'disability'?

It’s not always easy for employers to determine whether an employee’s medical condition amounts to a disability as defined by the Equality Act 2010.

The official definition is a "physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities".  Conditions such as Cancer, HIV infection or Multiple Sclerosis are automatically deemed disabilities.

The Act states that where an impairment is subject to treatment, then you look at the effect of that condition without the treatment; for example someone using a hearing aid or someone with diabetes which is being controlled by medication or diet.

However in Sussex Partnership NHS Foundation Trust v Norris last month, the EAT held that a life-long condition, controlled by medication, making Mr Norris more prone to infections, is not sufficient to satisfy the definition of disability under the Equality Act, even if at least one such infection caused a substantial adverse effect on his ability to carry out normal day-to-day activities.

The guidance on disability is lengthy (see Disability Guidance). The cautious approach for employers confronted with an employee with a suspected disability is to consider reasonable adjustments just in case, and to take legal advice if in any doubt.

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