Holiday Pay • E-Cigarettes • Twitter Tribunal

To steal Mark Twain’s much repeated letter concerning his health, reports of the Update’s death have been greatly exaggerated. The Update is still in fine fettle – it’s the writer who has suffered from, what Tony Hancock once described as that most dreadful of afflictions: Malingery. It took accidently ending up as a guest matador in a bull-fight to shake Hancock from his condition. It took 5 minutes of flitting between Radio 4 and 5Live to shake me from mine. Sima Kotecha (Today Programme) seemed to find it acceptable to ask an expert on Ebola, “what are the learns” from the crisis (translation: what have we learned). Immediately switching to 5Live I heard of someone “hitting against” Andy Murray (translation: practicing with). This led to a fit of “radio rage” (translation: smashing the car radio buttons until the noise went away).

The opportunity to share my agony has brought me back to the page. Still, as a wise sage told me last week; “language evolves, get over it”. So, with that in mind let’s take a look at the employment news:

(By the way, DC Employment Solicitors is now officially a “Leading Firm” in the Legal 500. We don’t want to make a big deal about it – I imagine some would put the logo in a prominent position and then enlarge it to the extent it is out of focus, which would be really embarrassing).

Holiday Pay

In late 2014 the Employment Appeal Tribunal (EAT) decided that overtime (including, non-guaranteed overtime – overtime which the employer does not have to offer, but the employee must work if offered) should be included in holiday pay calculations. Currently there is no requirement to include purely voluntary overtime (where the employee can refuse to work it) but read our Employers’ Guide for more detail regarding possible changes in the future. Changes to calculations should therefore be made moving forwards. The situation with regard to back-payments is considered in our Guide.

This decision is on the back of a recent European Court of Justice (“ECJ”) decision that holiday pay cannot be based on basic salary alone where the worker’s remuneration includes commission.

For a complete overview, see our Holiday Pay, Overtime and Commission Employers’ Guide.

 ‘Vapes’ (E-cigarettes)

Occasionally an Employment Tribunal decision comes along that is both common-sense and provides straight-forward reasoning for employers to follow. The first employment tribunal finding on a dismissal concerning e-cigarettes (Insley v Accent Catering) falls into this category. A school catering assistant (Ms Insley) was seen using an e-cigarette in full view of pupils. A disciplinary hearing was arranged to decide whether her actions were serious enough to merit dismissal. Before the hearing could take place, Ms Insley resigned. She then claimed constructive dismissal in the Employment Tribunal on the basis that her employer had behaved in a way that entitled her to resign. The Tribunal decided that it was not a case of constructive dismissal and the employer had acted properly. In other words, Ms Insley jumped too soon. Had she actually been dismissed it might have been a different story.

Most importantly, the Tribunal indicated that the school’s smoking policy would have been relevant to an unfair dismissal claim. The school’s smoking policy did not specifically prohibit the use of e-cigarettes. Had Ms Insley been dismissed, she could have argued that it was unfair to dismiss her as using an e-cigarette was not expressly prohibited on school premises.

It is not open to employers to rely on the legislation that prohibits smoking in the workplace. The legislation defines smoking as lit tobacco or any other substance that can be smoked when lit, so e-cigarettes do not come within that definition.

Comment: It is quite simple for employers to deal with this: ensure you have a policy banning smoking, including e-cigarettes, and make it clear that a breach is potentially a gross misconduct scenario. Make sure the policy is communicated to staff. Disciplinary action can then be taken on any breach.

Twitter Tribunal

With employees making daily use of social media, the challenge facing employers is protection against online behaviour that harms them or their reputation. In December 2014, the Employment Appeal Tribunal (EAT) considered the misuse of Twitter by an employee. The decision reinforces the need to have workplace social media policies in place.
The claim involved a manager employed by Game Retail Limited who was dismissed for gross misconduct after posting a number of tweets which his employer found to be offensive and threatening. The abuse was as wide and varied as the targets which included Newcastle supporters, dentists and caravan owners. At the initial Tribunal hearing, the Judge noted that none of his tweets referred to him working for Game or about his work in any way. The Judge held that there had been an unfair dismissal.

However, the EAT held that the Judge had essentially failed to have proper regard to the public nature of Twitter. His intention to use it for private purposes had to be balanced with the reality it is a public forum. In addition, he was following 100 Game stores and 65 were following him in return. This meant his tweets were available to them. Importantly, his tweets had led to a concern being raised by a colleague.

The EAT has sent the matter back to the Tribunal to re-consider.

Comment: The EAT declined to give general guidance on how employers should deal with social media issues but there is a common-sense aspect to this. The most obvious lesson for employers from this decision is that it is now essential to have a clear policy on the use of social media by employees. The Judge made it clear in the original decision that the fact Game did not have one in place was an influencing factor. Such policies should spell out that private use in an employee’s own time, which impacts the employer or its reputation, can lead to disciplinary action, including dismissal.

If you are interested in receiving a social media policy, please contact us (free to Enhance members).

 And Finally…

…From reading an article on “the American workplace”, my learns (and I hope I’m using that in the correct context) are that in the US a good perk is greatly enjoyed, particularly in the dot com arena. For some unfathomable reason Google has laid on for staff rope-swings around a pond filled with plastic balls, while Eventbrite provides beer on tap and limitless snacks. Continuing the alcohol theme, Dropbox has a company-wide happy hour for its Whiskey Fridays. Combined with ‘Razor Scooters’ that its staff are given to get about on it looks like easy meat for PI lawyers. The best (by which I mean most ridiculous) is Airbnb’s Moustache Monday when, yes, everyone has to wear a fake moustache. With that, I had better stop this prattling and get back to “lawing against” other solicitors…