UK Tribunal cases of interest
There is currently a backlog of 45,000 employment tribunal cases in England and Wales caused as a result of the COVID-19 Pandemic. Nevertheless there have been some interesting decisions of late, which include:
K v L UKEATS/0014/18
An employee was held to have been unfairly dismissed for misconduct after they were charged with possession of indecent images of children but not prosecuted. The Employer dismissed the employee (despite not having sufficient evidence to conclude that they in fact were responsible for the images), as it concluded that if the employee remained in post it would cause the Employer “serious reputational damage”. Unfortunately the complaint as set out in the disciplinary invitation was based solely on misconduct and made no mention of “reputational damage” being regarded as a potential ground for dismissal. As such the employee was not given an opportunity to address the reputational issues as part of the disciplinary hearing resulting in the decision to terminate being unfair.
Action Point: This case highlights the importance of clarity when it comes to setting out the reasons for a potential dismissal in any letter inviting an employee to a disciplinary hearing and allowing the employee a fair opportunity to respond to that reason. Further, an employer cannot dismiss an employee for reputational reasons just because the employee has been charged with a criminal offence.
BC v Chief Constable Police Service of Scotland [2020] CSIH 61
WhatsApp messages which included racist, sexist and homophobic comments discovered on a police officer’s smartphone in the course of legitimate police investigations into alleged crimes and which were used as the basis for misconduct proceedings did not constitute a breach of Article 8 of the European Convention on Human Rights (the right to private life and correspondence).
In this case, the sender of the comments was a serving police officer who is subject to professional standards (both on and off duty). The recipient of those messages was also a serving police officer and those professional duties imposed the recipient with a duty to report misconduct. The Court held that in light of those professional standards there was no reasonable expectation of privacy on those serving police officers. The Court went on to say that even if the Court was wrong and that there had been an interference with the officer’s Article 8 rights, there was nevertheless a clear and accessible legal basis for those messages to be used for disciplinary purposes as there is a very clear specific public interest in maintaining a properly regulated police force.
Action Point: Whilst this decision does not allow an employer to demand access to employee communications on a private chat network, it does highlight that there can be circumstances where employees subject to professional standards or working in regulated industries that their employer can take action on the basis of private messages that are brought to their attention.
Recently lodged Employment Tribunals in UK which could be of interest:
A Christian teaching assistant who was dismissed for gross misconduct over sharing a Facebook post opposing teaching about LGBT relationships in Primary Schools has lodged a claim in the Employment Tribunal. We will report on this case once it has been heard.