UK: Employment Round-Up - November 2015

Last Updated: 30 November 2015
Article by Stefan Martin, Nicholas Robertson and Laura Pharez

Our monthly review of key cases and new law affecting employers.

A recent decision for employers on the public interest test in the whistleblowing legislation

Decision: The recent case of Underwood v Wincanton plc sheds light on the scope of the public interest test in the whistleblowing legislation. The requirement that a whistleblowing disclosure has to be "in the public interest" was inserted into the legislation in 2013. The intention was to exclude claims made on the basis of a breach of an employee's contract of employment or other individual rights from the scope of whistleblowing protection.

In this case, Mr Underwood worked for a haulage company and made a complaint that overtime was being unfairly withheld from some drivers, possibly those who were keen to uphold standards and policies in relation to the safety and roadworthiness of their vehicles. The key question was whether this disclosure could be said to have been "in the public interest" and therefore whether Mr Underwood could be protected by the whistleblowing legislation.

The Employment Appeal Tribunal held that the disclosure made by Mr Underwood was in the public interest.

Impact: This case shows that the courts may interpret the words "in the public interest" very widely. Although the complaint effectively related to an employee claiming a breach of his rights, the fact that the employer's actions also affected a small group of other employees was sufficient for the "public interest" test to be satisfied.

The decision means that it will not be difficult for an employee to get a whistleblowing claim off the ground. It may not matter that the primary reason for the disclosure is the employee's own interest or advantage, provided that a sufficient group of other employees are also affected. Therefore, employers should be aware that whistleblowing protection can be claimed by an employee, even where only a small group of people are affected by the disclosure and even where the facts that the employee is relying on turn out to be untrue. It is unlikely that this can be said to have been Parliament's intention when the public interest test was introduced.

Is it fair to dismiss an employee who made derogatory comments about their employer on social media when the employer was aware of the misconduct at least six months before the dismissal?

Decision: Yes, according to the Employment Appeal Tribunal in the case of British Waterways Board v Smith. Mr Smith worked as a manual worker for British Waterways and worked on a rota pattern where he was on standby for one week in every five. Whilst on standby, employees were not permitted to consume alcohol.

During his employment, Mr Smith raised a number of grievances and a mediation was arranged to address these. At the mediation, Mr Smith's manager disclosed some derogatory Facebook comments that Mr Smith had made about British Waterways and Mr Smith's managers some two years previously. He had also bragged about consuming alcohol whilst on standby. British Waterways had been aware of these comments prior to the mediation. Mr Smith was suspended from work and was later dismissed for gross misconduct following a disciplinary hearing.

British Waterways' disciplinary policy expressly referred to "any action on the internet which might embarrass or discredit British Waterways" as constituting gross misconduct. At the Tribunal stage, it was found that Mr Smith had been unfairly dismissed on the basis that British Waterways had failed to take into account any potentially mitigating factors, such as Mr Smith's unblemished service record and the fact British Waterways had been aware of the Facebook comments for some time.

The Employment Appeal Tribunal overturned the Tribunal decision and found that Mr Smith had been fairly dismissed. It held that the Tribunal had unfairly criticised the disciplinary manager's approach to the mitigating factors and by doing so, the Tribunal had essentially substituted its own view for that of the employer when it held that British Waterways did not give weight to the mitigating factors raised by Mr Smith in relation to his dismissal.

Impact: It is interesting to note that there was no criticism of British Waterways for taking Mr Smith's previous behaviour into account and relying on misconduct that had been committed some years ago and of which it had been aware for some time. The Employment Appeal Tribunal held that Mr Smith's behaviour undermined the trust and confidence between the two parties and his behaviour was a clear breach of policy leaving British Waterways open to public condemnation. This case also highlights the importance of having a well drafted social media policy, which makes it clear that even private comments made on social media can result in disciplinary action.

Whilst we would not recommend taking this approach, this case also demonstrates that where an employer has failed to take action or delayed in responding to misconduct, it does not necessarily mean that they will lose the right to take action at a later date.

An interesting decision on shared parental leave

Decision: There has been a certain amount of comment on the ECJ decision of Maistrellis v Ypourgos Dikaiosynis Diarfanelias Kai Anthropinon Dikaiomaton, which considered whether the parental leave legislation in Greece is contrary to the EU parental leave and equal treatment directives and whether as a result, the UK's shared parental leave legislation is compliant with EU law. The decision does not directly impact UK law but provides an interesting insight into the ECJ's approach to parental leave rights.

Under Greek law, female civil servants are entitled to nine months' parental leave. However, male civil servants are only entitled to parental leave if the mother of their child works or exercises a profession. The ECJ found that this approach contravened the EU directives on parental leave and equal treatment and held that a parent cannot be deprived of the right to parental leave on the basis of the employment status of their spouse. The court also held that the situation of a male employee and female employee parent are comparable as regards the upbringing of children. Therefore the position under Greek law in relation to parental leave was also direct discrimination on the grounds of sex.

Impact: Unlike Greek law, UK legislation complies with the EU parental leave directive as it allows the minimum three months unpaid leave for men and women on an entirely equal basis. Therefore, the key issue, from a UK perspective, is the court's pronouncement that, in relation to parental leave, treating fathers less favourably than mothers was liable to perpetuate inequality between men and women because it kept men in a subsidiary role to that of women when it came to exercising parental duties.

Under the SPL regime, any parents (father or mother) seeking to take SPL must first show they have a partner who is in some form of employment. However, under UK law, a mother whose partner does not work has an alternative right to take statutory maternity leave of the same length as SPL, whereas a father whose partner does not work is not entitled to comparable paternity leave for the same length as SPL. There is therefore an arguable similarity with the position under Greek law.

However, we do not think that this opens the door to challenge the UK's SPL regime. In the UK, we have had paid maternity leave for many years. The SPL regime is a system by which a woman can elect to transfer some of her maternity leave to her partner. Under the European parental leave process, the issue was that women had a right to parental leave whereas a man did not. Here, we have a single right which is capable of being shared within a family unit. Unless it is inherently discriminatory to give women statutory paid maternity leave, then there is a fundamentally different situation between the UK's SPL and the Greek unpaid parental leave. Additionally, the UK's SPL is expressly about not perpetuating the traditional distribution of parental duties by allowing men the opportunity to participate.

Originally published November 2015

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