Reed Smith Client Alerts

Authors: Carl De Cicco David Ashmore

With summer now officially over, we set out below some important updates to be aware of as the ‘back to work’ period begins.

Employers may be able to dismiss, lawfully, for derogatory comments made on social media The Employment Appeal Tribunal (“EAT”) has found the dismissal of an employee by the British Waterways Board (“BWB”) for making derogatory comments concerning his supervisors to be lawful. The comments made by the employee, which were particularly colourful in places, came to light two years after they were made on social media. As they were in breach of BWB’s disciplinary and social media policies, the employee was dismissed for gross misconduct. Initially, the BWB was found by an Employment Tribunal to have unfairly dismissed the employee but, on appeal, the EAT held that the dismissal was within the band of reasonable responses and it would be wrong for an Employment Tribunal to substitute its own views. Whilst every dismissal will turn on its own particular facts and care should be taken before any decisions are made, this case highlights the importance and value of having clear social media and disciplinary policies in place to support disciplinary decisions.

HR influence in disciplinary proceedings can render dismissals unfair In remitting a case back to the Employment Tribunal for reconsideration, the EAT has given a reminder of the need for HR to avoid exceeding its advice-giving remit and straying into decision-making territory. Upon being told by a manager that he had decided to find an employee guilty of misconduct and issue a final warning, the Department of Transport’s HR team advised the manager that the employee might be dismissed for gross misconduct instead. Exactly how the HR team went about this is unclear from the EAT’s decision. However, there was sufficient concern over the actions of the HR team and whether they lobbied the manager to apply a harsher sanction (who after receiving ‘advice’ from the HR team changed his decision to one of dismissal) that the case has been remitted to the Employment Tribunal. Accordingly, the Employment Tribunal will now consider whether the HR team overstepped the mark. In light of this case, HR teams may wish to review their procedures for supporting disciplinary matters with a view to minimising the risk of being argued to have interfered with disciplinary decisions.

Time spent travelling to and from work can count as working time The European Court of Justice has found that workers without a fixed or habitual place of work can count as working time: (a) time spent travelling from home to the first customer of the day; and (b) time spent travelling from the final customer of the day back home. The case involved workers who installed security systems at clients’ premises. When the employer closed its regional office at which the workers were previously based, the workers successfully argued that their working time should commence when they set off from home to the first customer of the day and end when they arrived home following their visit to last customer of the day.

The case will be of particular interest to employers with mobile employees such as engineers, plumbers and breakdown services. Employers must be careful to ensure that the travelling time of workers who do not have a fixed or habitual place of work is accurately recorded. The fact that these hours must be included in determining workers’ working time may impact on whether employers are complying with working time limits contained in the Working Time Regulations.


Client Alert 2015-275