Under UK law employers proposing to make more than 20 people redundant at one establishment within a 90 day period have to enter into collective consultation. This means the employer must consult with either its trade unions or elected representatives with a view to reaching agreement on its proposals.
However, in 2013 the Employment Appeal Tribunal put a spanner in the works during the cases collectively known as the Woolworths cases, which arose out of the insolvent administrations of Woolworths and Ethel Austin. They decided that the term ‘establishment’ could mean all of the employer’s establishments.
So, in a case where an employer had 40 shops across the UK and proposed redundancies in a number of them that would come to more than 20 in total, the collective consultation obligations would apply.
The cases were referred to the Advocate General, who has confirmed that in his opinion there is no requirement to look at the total number of establishments in which redundancies are being proposed. It is enough just to take each establishment on its own.
It is worth noting that the Advocate General’s opinion is not binding and the European Court of Justice will now need to consider the matter and issue a judgment, but in most cases it has come to the same conclusion after the Advocate General has waded in to assist.
I recently took a case to the Employment Appeal Tribunal (EAT) with Game Retail Ltd where an employee had been dismissed for posting offensive comments on his private Twitter account.
Whilst none of the offensive tweets were directed at Game or any of its employees, this individual did use his Twitter account to follow a number of Game stores, some of whom followed him in return.
At the employment tribunal hearing the tribunal found that the claimant was using Twitter predominantly for his own personal use and in his own time, and that whilst the Tweets were offensive if viewed, there was no evidence to suggest that they had been viewed and that offence had been taken. Therefore it was not reasonable for Game to dismiss the employee.
The EAT disagreed and found, amongst other things, that there was a sufficient link between the claimant’s Twitter account and his work, given that he was using that account to follow stores and that one of Game’s employees had reported the offensive nature of the Tweets to Game in the first place. The claimant had made no attempt to restrict his Tweets from being seen by anyone other than his personal acquaintances and had not set up a separate account for his work.
This case is the first reported case of its kind. It serves as a very useful reminder that employers should put in place and communicate to all employees a clearly worded social media policy that sets out exactly what conduct is considered acceptable or unacceptable, and makes it clear as to whether that extends to a person’s private social media account.
I have recently recorded a podcast discussing this case and giving some guidance to employers dealing with these issues.
The Employment Appeal Tribunal (EAT) has confirmed that an employee of a British company, an Australian citizen working remotely in Australia for personal reasons, had the right to bring unfair dismissal and whistleblowing claims against her former employer in a UK employment tribunal.
In recent years a number of cases have considered whether individuals working abroad for British companies are entitled to protection from unfair dismissal under UK employment law, or whether they are subject to the laws of the country in which they work. Each case is fact-specific but the House of Lords has previously confirmed that expatriate employees who have been posted abroad by their UK employer for the purposes of businesses carried on in Great Britain may be entitled to sue for unfair dismissal.
In this case, Mrs Lodge, Head of Finance for a British company, was not posted abroad; she elected to move back to Australia to be closer to her sick mother and her employer allowed her to work remotely from Australia for some years. However, the EAT concluded that although she was working as a “virtual employee” in Australia rather than a “physical employee” in London, the work she was carrying out was for the benefit of her employer’s operation in London. As such she was a kind of expatriate employee and was entitled to pursue her English employment tribunal claims.