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3 Things We Learnt In Law This Week (31 January 2019)

Employee Was Not Unfairly Dismissed Over Offensive Facebook Posts About Director

An employee’s “extremely derogatory” social media posts about his boss’s generosity in awarding a Christmas bonus did not justify the employer’s failure to give him notice pay when he was dismissed, the Manchester Employment Tribunal has ruled.

Benson’s Vending dismissed Darren Atherton for gross misconduct without notice after a string of social media posts in which he told his manager to stick his Christmas gift “where the sun doesn’t shine”.

Atherton had been employed by the vending machine company from April 2012. The ET heard managing director Ken Haselden had a practice of giving a discretionary Christmas bonus gift to employees. These gifts were initially in the form of bottles of alcohol, however Haselden accommodated the preference of some employees for a voucher of a similar value.

The ET ruled that while Benson’s Vending was within its rights to dismiss Atherton, Atherton’s conduct was not gross misconduct.

Employment Judge Ryan explained that an employer may dismiss without notice or the requirement to give notice pay if the employee has committed gross misconduct but added: “When deciding whether the conduct of the employee is so serious that it entitles the employee to be treated as dismissed, recent authorities have indicated that that is a very high hurdle to pass.”

Benson’s Vending was ordered to pay Atherton £5,376.

Lesbian Employee ‘Told To Keep Sexuality Secret’ Wins Discrimination Case

A lesbian employee who was told by her boss to keep her sexuality hidden was the victim of discrimination, the ET has ruled.

The Liverpool Employment Tribunal heard Ashleigh McMahon disclosed her sexuality to the firm’s managing director, Darren Pilling, in her first week of employment.

Pilling then reportedly told her “not to make it common knowledge that she was gay” because “the owner of the business was ‘old school’ and that the company did not have any other gay people working for it”.

McMahon told the ET she found the demand “odd and uncomfortable” but had complied as she was mindful of the impact it could have on her employment, as she had only just begun work.

Pilling denied that McMahon had disclosed her sexuality early on in her employment or that he told her to disclose it – however, the ET found in favour of McMahon’s versions of events.

It found McMahon had been “discriminated against on the grounds of her sexual orientation” because she had been “less favourably treated by being asked not to disclose her sexuality by comparison with a hypothetical person not sharing her protected characteristic”.

Employment Judge Wardle added: “In terms of these alleged discriminatory acts, we believe that the claimant did make Mr Pilling aware of her sexuality early into her employment, despite his protestations to the contrary, and while not considering him to be homophobic in any way we also believed that he did suggest that she kept it under wraps as we felt that the reference to Mr Atherton being ‘old school’ had a ring of authenticity.”

A remedy hearing will now be arranged.

Worker Awarded £45,000 After Employer Failed To Install Voice Recognition Software

A disabled worker whose employer failed to provide voice recognition software to ease pain that “left her in tears” has been awarded an overall sum of £45,000 by Hull Employment Tribunal.

Haxby Group Practice was found to have unfairly dismissed Michelle Proctor, who suffered from carpal tunnel syndrome and arthritis, after she resigned from her role because necessary adjustments were not made.

The ET heard Proctor had repeatedly asked for a voice recognition service to be installed on her computer that would have reduced the amount of typing needed for her role. The software was eventually installed, but only after two years in which Proctor took multiple periods of sick leave because of the pain in her hands.

Employment Judge Maidment ruled: “Given that a material and indeed very significant cause of the claimant’s resignation was her having been subjected to unlawful discrimination, not least in the prolonged failure to make reasonable adjustments, that dismissal must also be categorised as a further act of unlawful discrimination.”

The ET ordered Haxby Group Practice pay Proctor £12,421 for compensation for unfair dismissal and £14,385 loss of earnings arising out of unlawful discrimination. Proctor was also granted £15,000 for injury to feelings arising out of unlawful discrimination, in particular the failure to make reasonable adjustments. With the addition of interest, Proctor received a total award of £44,673.75.

SCE Solicitors is a boutique employment law practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Emma Roberts
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Emma Roberts

Emma is a trainee solicitor at SCE Solicitors. Emma commenced her training contract in September 2018 and is currently working in the employment law department assisting director Samira Cakali. Emma also assists in the running of the firm’s myHR service where she can support you in the day-to-day management of your staff.

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