Employment case law update | Summer 2023

Here we take a quick look at some key employment case law decisions from recent months.

Webb v London Underground – Privacy of employee Facebook posts

This case concerned claims of unfair dismissal and discrimination against London Undergound (LU) following derogatory comments made by Ms Webb on her Facebook page after the murder of George Floyd. Although her Facebook page was private, her status clearly stated she was an employee of LU and many of her 200 friends were work colleagues.

The tribunal found that the dismissal was not discriminatory, and that it was substantively fair but procedurally unfair. Compensation was reduced by 75% due to Ms Webb’s conduct and contributory fault.

Facebook and privacy

Perhaps the more interesting aspects of this case relate to the privacy of Ms Webb’s private Facebook account. She argued that her dismissal and the manner in which LU treated her:

• had been a breach of her right to a private life and correspondence under Article 8 of the European Convention on Human Rights (ECHR), and
• it also breached her right to freedom of expression under Article 10 ECHR.

The tribunal rejected these arguments. Article 8 was not engaged. LU’s social media policy explicitly warned that private posts were at risk of wider circulation and that disciplinary action could be taken if posts were inconsistent with the social media policy. In addition, it found that Ms Webb knew that her posts were liable to be broadcast beyond her circle of friends and therefore had no expectation of privacy. Indeed, the tribunal found it significant that Ms Webb regularly re-posted content, interacted with people who were not ‘friends’, and was fully aware that her ‘friends’ routinely re-posted her content.

The tribunal and the parties agreed that Article 10 ECHR was engaged because by disciplining Ms Webb, LU was interfering with her freedom of speech. The tribunal therefore considered whether LU’s interference was justified. It found that the two grounds set out in Article 10(2) ECHR, ie the protection of its reputation, and the protection of the rights of other employees, applied in this case. LU’s conduct was therefore a justifiable restriction on Ms Webb’s right to freedom of expression.

What does this mean for employers?

While the decision is not binding on other tribunals, it is certainly another helpful case for employers to rely on when pursuing disciplinary proceedings in relation to Facebook posts. However, proceed with caution, as some consider that tribunals are likely to take a different approach to content-sharing apps (such as Facebook and Twitter) than they will do to private messaging apps (such as WhatsApp). While each case will turn on its facts, it is likely to be easier for employees to demonstrate a reasonable expectation of privacy over private messaging apps.

That is not to say that employers are always going to be able to take disciplinary action when they are dealing with Facebook or Twitter etc, as cases are likely to be fact sensitive. Employers seeking to rely on private posts in disciplinary proceedings should:

• ensure that their social media policies state clearly that employees should not have an expectation of privacy over Facebook or any other content-sharing platforms, and set out the risks of posts being subject to wider circulation or access;
• make sure that they have clear and unequivocal disciplinary and social media policies and that it is clear that disciplinary action may result from inappropriate conduct on social media; and
• consider each potential disciplinary case on its own facts: consider what platform the information/evidence has come from, how it came into your possession and what the employee’s presence is on social media. Be more cautious with content from private messaging apps, or where evidence is obtained covertly.

Enforcement of restrictive covenants and unreasonable delay

The Court of Appeal issued judgments in two related cases – Jump Trading International Ltd v Couture and Verition Advisors (UK Partners) LLP v Jump Trading International Ltd – concerning enforcement of a non-compete covenant.

Background

The non-compete provision was unusual as it did not specify what the restricted period was, but gave JTI the ability to set a time-frame of between zero and 12 months. JTI sought to enforce a non-compete period of 12 months following the end of Mr Couture’s gardening leave, effectively restricting him for a total period of 24 months, with no credit being given for the time spent on gardening leave, as you would normally expect.

JTI applied for an interim injunction to prevent Mr Couture from starting employment with his new employer, Verition Advisors (UK Partners) LLP. The High Court refused to grant the injunction because of JTI’s unreasonable delay in bringing proceedings, and Mr Couture was permitted to start employment with Verition. Instead, the court ordered a speedy trial so that the restrictive covenant’s enforceability could be resolved before too much competitive activity had taken place.

The matter went to the Court of Appeal. JTI sought to appeal against the decision not to grant interim relief by way of an injunction. Verition appealed against the decision to order a speedy trial.

Court of Appeal decision

Neither party was granted permission to appeal.

In the JTI case, the Court of Appeal held that it should only interfere with a judge’s discretion where the decision was based on a misunderstanding of law or fact, or was so aberrant that no reasonable judge could have reached it. This was not the case here. In this case, the judge had been entitled to conclude that the delay of four months between correspondence and the issuing of proceedings was unreasonable and justified not granting interim relief.

In the Verition case, the Court of Appeal refused permission to appeal on the ground that there was no arguable case that the judge had been “plainly wrong” in the exercise of his discretion. JTI’s excessive delay did not disentitle them to a speedy trial. Regardless of whether interim relief is ordered, in a restrictive covenant case there is almost always a “real urgency” justifying a speedy trial, due to the fact that such covenants are time limited. In addition, a speedy trial caused no particular prejudice to either party, since the costs were likely to be similar for the trial if it were not expedited.

What does this mean for employers?

The case, amongst other points, emphasises the importance for employers to act without unreasonable delay should they wish to pursue an application for interim relief against any employee alleged to have breached restrictive covenants. Whilst there is still the opportunity for JTI to succeed in the speedy trial and to receive final prohibitive relief along with damages, the failure to succeed with their interim relief application arguably increases their business risk.

High Court quashes legislation allowing agency workers to replace striking staff

In a significant judgment, R (ASLEF and others) v Secretary of State for Business and Trade [2023], the High Court has held that legislation introduced by the UK Government allowing employers to replace striking staff with temporary agency workers is unlawful and should be quashed,

Until July 2022, the Conduct of Employment Agencies and Employment Businesses Regulations 2003 prohibited agencies from supplying employers with temporary workers to perform the duties normally performed by workers taking part in official industrial action. However, this was revoked by the Secretary of State through the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022. A total of 13 trade unions successfully challenged these regulations on the ground that the Secretary of State had failed to comply with his duty under S.12(2) of the Employment Agencies Act 1973 to undertake consultation prior to introducing the legislation.