Newsletter
Welcome to our monthly newsletter, including a short employment law and HR update. In case you missed it, our most recent case law update looked into how Claimants need to mitigate their losses when they are dismissed and our last newsletter looked at industrial action and challenges for criminal law solicitors.
PJH Law News – Prize Draw Winner
For those of you that missed our seminar there was a prize draw offering attendees the chance to win a complimentary audit of HR policies and procedures. We are pleased to announce the winner is Nicola Eastwood at Charis Grants . For anyone interested in a HR Health check please complete our scorecard which can be found here.
Gary Lineker and Philosophical Belief Discrimination
As I am sure many of you will have already heard, Gary Lineker and the BBC caused quite a furore this month following Mr Lineker’s tweets in relation to the current Government. The Match of the Day presenter was embroiled in a row over the role of the BBC and their staff in the public eye, following tweets comparing the language used in an asylum policy, to 1930’s Germany. The presenter sparked a national debate over whether he should keep his job with the national broadcaster, have some disciplinary action taken against him, or whether the matter should be dropped altogether as simply his free expression.
Outside of the national debate, is there some insight we can gain from looking at this from an employment law perspective? The issue could be seen from a discrimination viewpoint, as political views and affiliations are held to be a protected philosophical belief. The requirement for such a belief can be found in the Equality Act, which provides the following test for a belief to be protected:
- It must be genuinely held,
- Be a belief and not an opinion or viewpoint based on the present state of information available,
- Be a belief as to a weighty or substantial aspect of human life and behaviour,
- Attain a certain level of cogency, seriousness, cohesion and importance, and
- Be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others.
In previous cases it has been held that political beliefs can be protected philosophical beliefs, meaning any action taken could have been held to be discriminatory. The BBC could point to any action being a proportionate means of achieving legitimate aim of ensuring impartiality. However, that argument would be undermined by other presenters including Alan Sugar, David Attenborough, Karen Brady and Chris Packham, who have not been sanctioned when giving political opinions. Even more contraire, Linker himself was not sanctioned when criticising the Qatari World Cup whilst opening the BBC’s coverage of the tournament.
Whilst Lineker is held out to be a contractor and not an employee, if he were an employee any dismissal would also likely be outside the range of reasonable responses for the same reason, given others who committed similar social media faux pas were not sanctioned. In any event, someone using social media in their own time outside of work has been established as being outside the course of employment.
Twitter Source Code Leak
Twitter’s ongoing woes brings us a disgruntled ex-employee who was fired as part of the companies wave of staff cuts, which had reduced the workforce by around 75%. This particular employee decided that leaking the source code (the underlying code that decides how the website functions) onto the popular website GitHub (a coding related site where others can view code written by others), was a legitimate way of getting revenge on the company that dismissed him. The distribution of copyrighted material, crucial to the functioning of a business, especially one of the size and nature as Twitter, along with the potential diminution in value of otherwise hidden intellectual property, is unlikely to end well.
The case is similar to the Morrison’s data protection case where an aggrieved employee published payroll data on the dark web as revenge for dismissal. The takeaway point here is, as an employer, to revoke the access to sensitive information or copyrighted material as soon as practicable once an employee has been dismissed. It is also worth considering that this would be unlikely to occur in usual circumstances, it is only due to the large number of employees being dismissed and the chaotic nature in which they are being dismissed that has led to this situation. The circumstances in question mean that the security of the business may be affected, as this increases the known cyber security risks. Although employees in this country have the benefit of far greater protections than those in the USA, which may help alleviate an employees need to seek revenge in this manner, it is always sensible to prevent these situations from occurring in the first place.
Daylight Savings – Lethal Health and Safety Nightmare?
With the clocks having lost us all an hour of much needed sleep, should we be concerned about the health implications of the clocks going forward?
Studies in countries that observe daylight savings, show that the loss of an hour of sleep can result in an almost 24% increase in heart attacks. In the weeks following the change, with the converse also being true, in that there is a 21% reduction in the rate of heart attacks after getting an extra hour of sleep. A similar increase can also be found in the chance of having a stroke. Ensuring you have enough sleep can be vital to not only ensuring how you feel throughout the day, but also your health as well.
On top of the risk of a heart attack, there has been correlation found between the change and the number of car accidents and accidents at work, with the total number of deaths caused as a result to be around 140 across England, Wales, and Scotland. For those working the night shift this is also a problem, as they may lose an hour of pay as well! Health and safety managers take note as this week is clearly a banana skin.
Drafting with Oxford Commas
For those of you with a keen memory (or, like me, need to get out more), you may remember this next article from a while ago. The story in question relates to the use of the Oxford comma in the drafting of documents and how they can be interpreted. The case itself, which was brought to court in Maine, US, needed to decide on the interpretation of a piece of legislation in relation to an overtime pay, payable on hours worked above 40 hours per week, which required time-and-a-half. The law had an exception however, which disallowed workers employed in ‘the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of’ certain goods.
So, how would you interpret the above? Would you consider the packing for shipment or distribution of the goods, to be one activity or two? Would it affect your decision if I mentioned that the guidance on drafting legislation, specifically advised against the use of the Oxford comma?
The court ruled that ‘packing for shipment’ and ‘distribution’ were to be read as a singular activity considering the lack of comma separating the two, which was considered to be an intention of the draftsmen. This meant that the workers would not be excluded from the overtime payments.
Why am I mentioning this now? Thank you for asking, convenient imaginary reader! This very issue was discussed during our seminar preparation (many thanks again for those that attended), on whether Oxford commas should be used and what their effect is. It is always important therefore, regardless of the context, to ensure that the careful drafting of documents conveys the message you are trying to send as accurately as possible and with the correct punctuation.
HR Research Participation
Just before our lighter side of the news segment we would kindly invite all readers to participate in a study on work and wellbeing. The research is part of Fiona Frost’s PHD thesis to examine the perceptions of their relationships at work, their work environment, and their workload. All participant’s details will be kept completely anonymous and any contributions would be greatly appreciated plus a chance to assist the development of someone qualifying in HR. The survey will take approximately 15 minutes and can be found here.
Lighter Side of the News – “This is a customer announcement… I just got sacked!”
A B&Q worker has been banned from every one of their stores after an expletive ridden outburst over the announcement system just after being dismissed. Recording this interaction on social media, the voice echoing across the store said: ‘this is a customer announcement. I just got sacked and B&Q are c***s. F**k everyone. Have a nice day.’ It seems that the worker in question was called into a disciplinary by his manager following complaints that he was vaping outside of the designated smoking areas. Whether the meeting was intended to be a disciplinary or a warning isn’t clear, but I think the odds of him being invited back now are pretty small!
While this was only a temporary job for the student in question, for most of us who need to work in order to survive, this may not be the best way to end your relationship with an employer. It is always worth remembering that a reference can be a valuable asset when seeking alternative employment, although, making national news for a social media post swearing at an ex-employer probably isn’t the best way of maintaining a professional image. I’ll have to remember that for my next networking session.
