Daniel Piddington

Taking action over an employeeâ??s social media posts

A wayward social media post by an employee can not only result in adverse national publicity, and damage to public relationships, but can result in already financially strapped councils facing liability for hefty legal costs and compensation payments.

However, local authorities must take particular care when considering what action to take over an employee’s social media posts. A wrong move could result in claims of breach of the right to respect for private and family life, or the right to freedom of expression.

Word of warning

Monitoring of social media accounts brings with it its own pitfalls. Covert monitoring will only be justified in very exceptional situations. The General Data Protection Regulations (GDPR) apply and a breach could result in significant financial penalties.

The ICO Employment Practices Guide outlines that employers must be clear with their employees if they intend to monitor social media accounts detailing the nature, extent and reasons for any monitoring.

“All views my own”

It is now all too common to see social media accounts banding this phrase, but it by no means offers immunity from disciplinary action. Employers are entitled to rely upon an employee’s duty of fidelity and loyalty. Activity on social media may itself amount to misconduct warranting disciplinary action, such as:

a) using the platform for the purposes of bullying and harassment;

b) disclosing confidential information;

c) writing disparaging comments about the employer, other employees or customers;

d) writing or publishing offensive material which brings the employer into disrepute.

As rightly highlighted by ACAS in their guidance, any disciplinary sanction needs to be proportionate to the perceived offence. If an employee has a clean disciplinary record, dismissal is only likely to be warranted if the action is clearly identified as potential gross misconduct in the contract of employment and/or any disciplinary policy, or it can be established that the relationship of trust and confidence has been seriously undermined.

To best protect the authority, it is advised that the following steps are adopted:

1. If an individual is required to use social media in their job role, ensure their contract is clear as to what is permitted and what is required.

2. Implement a clear Social Media and Electronic Communications Policy.

3. Ensure the Disciplinary and Grievance, Bullying and Harassment and Privacy and Data Protection Policies all include reference to use of social media.

4. Comply with the ICO guidance and GDPR.

5. Fully investigate any allegations of inappropriate social media use, including:

• Whether the post has been deleted, and if so when.
• Who was able to see the post.
• How many interactions there were.
• Whether the individual uses social media as part of their role.
• Whether the post was made during working hours.
• The nature of the post.
• The actual or potential damage.
• Whether a reasonable reader could rationally conclude that comments consisted of, or included, statements made on the authority’s behalf.

6. Consider the employee’s length of service and disciplinary record.

7. Consider any mitigation.

8. Ensure consistency of treatment in similar situations.

Equally, the existence of a disclaimer does not provide a definitive defence by the employer to a potential claim. The Equality Act 2010 imposes liability upon an employer for discriminatory acts of their employees which have occurred in the course of employment, unless the employer can establish that they took all reasonable steps to avoid the discrimination. The recent decision of the Supreme Court in WM Morrisons Supermarkets v Various Claimants confirmed an arguably wider test at common law, namely 'whether the wrongful conduct was so closely connected with acts the employee was authorised to do that ... it may fairly and properly be regarded as done by the employee whilst acting in the ordinary course of his employment'.

Whilst the existence of a disclaimer may be a relevant factor, the court or tribunal will go further and consider all the circumstances.

For further advice and guidance please contact our head of employment, Daniel Piddington.

To instruct Daniel please contact our clerks.

This article appeared on the website www.localgov.co.uk. 

To Uplift or Not to Uplift?

Since the Court of Appeal handed down their decisions in Simmons v Castle [2012] EWCA Civ 1039 and [2012] EWCA Civ 1288 there has been a great deal of debate between employment practitioners as to whether a 10% uplift in damages for injury to feelings in employment tribunals is appropriate. Whilst the EAT in The Cadogan Hotel Partners Ltd v Ozog [2014] UKEAT/0001/14 and The Sash Window Workshop Ltd v King [2014] UKEAT/0058/14 were in favour of applying the uplift, the decision in De Souza v Vinci Construction UK Ltd [2014] UKEAT/0328/14 was clear that the uplift is not applicable.

On 25 February 2015 Slade J handed down judgment in Chawla v Hewlett Packard Ltd [2015] UKEAT/0280/13/BA, in which she provided obiter comments in support of the latter interpretation.

In Chawla the original ET proceedings involved a claim for disability discrimination by a failure to make reasonable adjustments in communicating with him whilst he was on long term sickness absence, together with direct disability discrimination in respect of delay in joining the Respondent’s Share Purchase Plan and harassment allegations.

As part of a much larger series of grounds for appeal, the Claimant sought to appeal the level of award granted by the Employment Tribunal for the Claimant’s injury to feelings. Before the EAT (albeit not expressly pleaded in the Notice of Appeal) the Claimant submitted that the award should be updated to reflect the decision in Simmons v Castle.

At paragraphs 85 to 95 the EAT outline the original brackets proposed in Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871, the update to such provided in Da’Bell v National Society for Prevention of Cruelty to Children [2009] UKEAT/0227/09 and the more recent guidance provided by Underhill J in Bullimore v Pothecary Witham Weld (No 2) [2010] UKEAT/0189/10. The EAT went on to highlight that:

“The “uprating” of awards for injury to feelings in discrimination cases referred to in Da’Bell and Bullimore is undertaken where it is necessary to do so to reflect the current value of money. It may be necessary, therefore, for that reason to increase the amounts of awarded in previous guideline cases. The increase in guideline figures by 10% decided by the Court of Appeal in Simmons v Castle was to be made for a different reason for cases in which the then existing costs regime was to be changed by the implementation of the reforms recommended in the Review of Civil Litigation Costs by Sir Rupert Jackson. 

“As was recognised in Chapter 34 paragraph 3.5 of Sir Rupert Jackson’s report, there is a no costs regime in ETs and the EAT.  ET claims are not included on the list of specific types of litigation dealt with in the report.  The rationale for the uplift explained by the Court of Appeal in Simmons v Castle does not apply to litigation in the ET.  Accordingly the 10% uplift decided upon in that case does not apply to increase guidelines in cases on injury to feelings in discrimination cases in ET’s.  The principle to be applied by ET’s in making such awards is that in Da’Bell and Bullimore to assess the quantum for non-pecuniary loss in “today’s money”.”  

Whilst the decision on Chawla does provide clear support for the rationale in De Souza, the indication provided by Slade J in relation to the uplift is purely obiter and therefore, absent any readily available copy of the decision in De Sousa, Claimants are likely to continue to come armed with the decision in The Sash Window Workshop Ltd to support their suggestion that the 10% uplift should apply. It is clear that with conflicting EAT authority this issue is ripe for a determination by the Court of Appeal!

Please note any article published on this website is not intended as legal advice and is to be considered to represent the opinions of the author at the time of publishing only. If you require legal advice, you are encouraged to contact a solicitor, complete the Direct Access Questionnaire or complete our ‘Contact Us’ form.

Wasted Costs in Tribunal Hearings?

With the Government’s consultation on "Resolving Workplace Disputes" proposing to extend the principle of wasted costs to include those of the tribunal itself, it has never been more important for representatives to have a clear understanding of wasted costs orders.

The starting point must always be that any costs order in the Employment Tribunal is an exception rather than the rule. The tribunal’s discretion to award wasted costs derives from rule 48 of the Employment Tribunal Procedural Rules where wasted costs are defined as "costs incurred by party (a) as a result of any improper, unreasonable or negligent act or omission on the part of any representative; or (b) which, in the light of any such act or omission occurring after they were incurred, the tribunal considers it unreasonable to expect that party to pay".

The proposal outlined in the consultation paper would therefore represent a significant departure from the current position and without clear guidance on what ‘tribunal costs’ are envisaged to be recoverable the suggestion immediately sits uncomfortably with any representative who regularly appears on behalf of litigants. Defensive propositions immediately jump to the frame; surely it cannot be appropriate for a tribunal to have a financial interest in cases, surely it will only add to the cost pressure being applied to unrepresented parties? It is at least arguable that both postulations are fundamentally flawed. Costs recovery has always remained within the discretion of the tribunal bench and/or judge. There is no suggestion that any award for tribunal costs will in any way benefit those hearing the case and, therefore, impartiality remains. The potential use of these provisions to add pressure to unrepresented parties is nonsensical as any wasted costs award is only applicable as a result of conduct by a representative and they do not apply to the conduct of a litigant in person.

Upon further consideration the proposed variation of wasted costs orders may have one overwhelming benefit: They may be seen as an even greater mechanism for ridding the tribunal of the plague of unqualified and inexperienced individuals who seek to take advantage of the lax rights of audience within the tribunal system to offer ‘cheap and cheerful’ representation, but who fail to deliver any benefit and simply frustrate the proceedings. Perhaps some extortionate bill for the wasted tribunal time and resources is exactly what such individuals require to make them think again. Regardless of the outcome of the consultation in relation to the wasted costs issue, it remains that only negligent and/or unreasonable representatives need be concerned!

Please note any article published on this website is not intended as legal advice and is to be considered to represent the opinions of the author at the time of publishing only. If you require legal advice, you are encouraged to contact a solicitor, complete the Direct Access Questionnaire or complete our ‘Contact Us’ form.

I would also like to convey my thanks to Daniel. I thought he was outstanding throughout the case.  His detailed preparation was obvious and he provided a masterclass in cross examination. His exceptional skills as an advocate and his significant knowledge of employment law were demonstrated throughout the proceedings. I was very grateful to have him on board, as was our client.  I look forward to working with Daniel again.

I engaged Daniel (Barrister, College Chambers) on a Direct Access basis. I found Daniel to be extremely professional, intelligent and relatable during our time, working together. Daniel’s honest, intellectual approach and keen eye to detail was superb and I can’t recommend and thank him enough for his ‘over above and beyond’ support for my case. I felt especially ‘heard’ and safe as a client especially when emotions were high. 

Thank you for everything you have done today and throughout this matter. It has been so reassuring to have you on board and both my clients and I have been very fortunate to have had the benefit of such skilled and knowledgeable counsel to help successfully fight off such an aggressive opposition in this multi-faceted, double defended High Court case.

Chris Prew, Roach Pittis Solicitors

I wanted to write to you and thank you for suggesting Daniel Piddington in respect of my recent personal injury trial. Daniel came in to the case shortly prior to trial. I was very impressed with the speed and thoroughness in respect of the initial review of the paperwork and his conference with client was excellent. He dealt with a number of difficult issues with the client but his thorough grasp of the situation gave the client even greater confident in Mr Piddington€™s ability to represent him at trial. Client felt extremely well represented by Daniel during the course of the trial and was, of course, very pleased with the successful outcome. I would confirm that I will have no hesitation in using Mr Piddington in the future and have referred his CV to my two litigation colleagues in the firm highly recommending him.

Kevin Richardson, Solicitor

Daniel is a calm but robust advocate with an eye for detail and superb preparation. He has a knack of putting clients at ease and drawing out key elements of a case. His written work and drafting are meticulous and easy to read and he is always ready to assist and go the extra mile for his instructing solicitors. He is willing to assist and advise on tricky issues over the phone and happy to undertake quick research for instructing solicitors. 

Claire Best, Solicitor , WBD

I have been instructing Daniel Piddington since 2012. Daniel is a thorough, organised and very effective advocate. He has the ability to assimilate a large volume of information, often in complex cases and always gives well thought-out advice. He engages well with clients and is an absolute pleasure to work with. 

I really felt that I couldn't have been in better hands.

Really impressed with your lecture, your energy and enthusiasm and despite running short on time due to other speakers overrunning you were really engaging - I'm always on the lookout for new Counsel on those types of matters (Tolata).

Robert Freeman, Solicitor , East Sussex County Council

Daniel has been a fantastic support in terms of dealing with difficult and new issues over the past few years. Against the odds, he has recently assisted in achieving strike out in respect of large parts of a difficult claim (involving age, race, disability discrimination and unfair dismissal). Daniel's written and oral skills are excellent and he is always helpful and responds to queries.

Mediation Client

Thanks in particular to Daniel Piddington who we felt was a great support in compassionately defending our inheritance and guiding us to a satisfactory conclusion€¦.we are extremely grateful we picked Daniel

Once again Daniel has proven to be thorough and provided professional representation

Rebecca Urmston , Eversheds Sutherland

Daniel is an impressive advocate with an ability to navigate very technical legal arguments with such ease. He is always well prepared and will take the time to discuss the merits of the case and strategy at an early stage. Daniel is very calm, measured and quick thinking on his feet. His advice is always clear and concise and he is very responsive and easy to work with.

What a result. I simply cannot understand Daniel managed to get a very thorough grip and then bring all the facts to bear with such clarity.

Louis Howlett , DC Employment Solicitors

Daniel is always available to assist and very down to earth. He has an excellent client manner and quickly grasps the key issues to provide insightful analysis and advice. He is also an exceptional advocate and we would have no problem in recommending him.

Dan was brilliant and helpful, please pass on our huge huge thanks