Monday, November 22, 2010

Discrimination, Victimisation and Facebook - Another Thing for Employers to Worry About

A case mentioned on a US Employment Law blog raises an interesting point that shows another possible concern for employers over the use of Social Networking sites in a work context.

An employee and her supervisor were friends on Facebook. Then one day the employee raised a discrimination claim. The supervisor was concerned about what the employee might reveal about the case on Facebook and "unfriended" the employee on Facebook.

The employee then brought a further claim alleging "retaliation" and claimed she was being treated less favourably because she had brought the discrimination claim. She cited the "unfriending" as being an example of this, the suggestion being that it was the online equivalent of being sent to Coventry in the real world.

The equivalent of "retaliation" in English law is "victimisation." If someone does certain "protected acts" including bringing a claim for, appearing as a witness in relation to a claim for, or alleging discrimination, then it is unlawful to subject them to a detriment "because" of that act.

This raises interesting questions:-

a) Is "unfriending" someone on Facebook a "detriment"? This is not clear cut - it is by no means obvious that an Employment Tribunal in this country would consider no longer being friends with someone on Facebook to be analogous to no longer speaking to them in the office.

b) Would the "unfriending" be "because" of the protected act? Until the Equality Act 2010 came into force the legislation made it unlawful to subject someone to a detriment "by reason that" they had done a protected act. This had been interpreted so that where an employer declined to give a reference for the reason that they did not want to prejudice their position in the litigation this was not unlawful. At face value "because" should mean the same thing as "by reason that" but until there is a case on the point we cannot be sure that the test remains the same.

If it does, this would suggest that an English employer would not be found liable for victimisation on the same facts as the US case provided that the reason for the "unfriending" was the concern to protect their position in the litigation and not simply a snub to the employee.

The lesson that one draws from this might well be that people in management positions should be instructed not to be Facebook friends with their subordinates in the first place!

Tuesday, November 16, 2010

Unfair Dismissal - Striking Out (How Not To Do It)

Mr Balls and his wife worked for Downham Market High School. She was the Bursar and he was the groundsman.

An allegation of theft was made against Mrs Balls and both she and her husband were dismissed for gross misconduct. Mr Balls denied doing anything wrong and was never charged with any offence. His wife subsequently went to prison for 18 months after admitting two counts of theft involving a total of £115,000.

Mr Balls claimed Unfair Dismissal and unlawful deduction from wages. He asked the Employment Tribunal to separate his case from that of his wife, but they refused. The cases were stayed by the Tribunal pending the conclusion of the criminal proceedings.

When the criminal case against his wife finished Mr Balls wrote to the Employment Tribunal to say that he wanted the case to carry on. There was then some very unsatisfactory correspondence with the Tribunal in which they accused him of not giving them enough information and warned him that his case could be struck out.

The Respondent applied to have Mr Balls' Claims struck out on the basis that they had no reasonable prospect of success and that he was not actively pursuing them.

The Employment Tribunal struck out his Claims on both grounds. Mr Balls was unable to attend that hearing due to illness.

Not surprisingly he appealed to the Employment Appeal Tribunal, where he was represented by Counsel under a free representation scheme.

The EAT was scathing in its criticism both of the Tribunal for its aggressive letters to Mr Balls and of the Employment Judge for striking out the Claims.

It said it could not possibly be right to strike out the Claim for unlawful deduction from wages when the Respondent had never filed an ET3 Response to it!

Furthermore the Judgment of the Tribunal gave the impression that the Employment Judge had not fully considered the facts or the legal principles to be applied. She seemed to have tarred the Claimant with the same brush as his wife and to have assumed that because she was guilty he also had no reasonable prospect of success - even though he worked in a different department to her and did not have access to School funds.

It was also wrong to say that he had not been actively pursuing the case when he had in fact been trying to no avail to get the Tribunal to get on with it.

The Judgment stresses that strike out is a draconian penalty which deprives a party of the chance to have their case decided on the merits. It is only to be applied in the clearest of cases - where there is no (not just "poor") reasonable prospect of success or where the delay is intentional or has made a fair trial impossible.

The case is reported at:-

http://www.employmentappeals.gov.uk/Public/Upload/10_0343rjfhSBDM.doc

Thursday, November 11, 2010

Age Discrimination - Serial Litigants Lose Again?

Not for the first time in recent months the Employment Appeal Tribunal has held that an Employment Tribunal was right to strike out or dismiss Age Discrimination claims where the Claimant had no genuine interest in obtaining the jobs which were being advertised.

As in the last reported case on this issue (Keane v Investigo UKEAT/389/09/SM),the Claimant Mr Berry brought a number of Claims based on job advertisements which were said to contain wording that discriminated against older people.

He did not allege that he had personally being placed at any disadvantage by these advertisements. In one of the cases having complained about the wording of the advertisement he failed to apply for the job despite the employer having positively encourage him to do so.

Noticeably the Claimant failed to attend the hearings in any of the 4 cases before the Employment Tribunal and made only written representations to the EAT.

One of the Respondents had in its ET3 response form to the Tribunal alleged that Mr Berry was a serial litigant who had sought to bring numerous proceedings and was using such Claims or the threat of them as a source of income. Whilst the EAT declined to express a concluded view on this allegation without hearing from the Claimant it reiterated its previous view that this was if true a misuse of the Tribunal system and could be expected to result in an Order for Costs against the party to blame.

The case is reported at:-

http://www.employmentappeals.gov.uk/Public/Upload/10_0190041904200421phapwwSBLA.doc