We have reviewed the top case law in Northern Ireland 2023 providing key learnings for employers, reducing the risk of businesses making the same mistake as others have. Learnings for employers are clearly outlined at the end of each case law.
Employer deemed to have fairly dismissed an employee due to inappropriate posting on social media. The employee raised an unfair dismissal claim following misconduct.
Background of claim;
Ms Shiels (claimant) was employed by South Health and Social Care Trust (Respondent) for nearly 5 years as a healthcare assistant. This case arises following an incident on 28th May 2022 in an Orange hall after a march.
Whilst the claimant wasn’t present at the orange hall, the claimant liked and shared a video on Facebook, sharing on her account that stated she worked for the respondent. The contents of the video included a song described as ‘vile and repulsive’ with its references to Michaela McAreavey, a young woman murdered on honeymoon.
This is not the only tribunal relating to the video, McDade v Norman Emerson was in relation to the video. The claimant in this case was Ms Shiels’s partner. Outrage across the public occurred, leading to the respondent opening an investigation against the claimant leading to her dismissal.
The claimant brought forward a claim for unfair dismissal.
The claimant claimed she had not watched the full video, due to a ‘pathetic’ signal at Stormont and had no idea of the contents in the video, nor could hear precisely what was being song in the video. The claimant stated the strong focus on cultural bannerettes.
The video was removed by both the claimant and her partner, by deactivating their profiles. However, the tribunal did have access to a 31-second clip of the video live-streamed on Facebook. Further to this, the claimant continually refused to reactivate her Facebook profile.
The respondent throughout the investigation was very clear on their social media policy and Equality, Diversity, and Inclusion policy outlined in the employee handbook. Their social media policy, it states “… this policy does not only apply when an employee is at work, but at all times when a connection to the trust has been made.”
The Equality, Diversity, and Inclusion policy detailed acts of discrimination that would result in disciplinary actions with the possibility of dismissal. The claimants’ actions on the 28th May 2022 amounted to “serious breaches” of the organisation’s policies.
Under the 1996 order, the tribunal found this to be a fair dismissal, outlining the claimant’s action were reckless whilst bringing the respondent’s reputation into serious disrepute. The tribunal dismissed the claimant’s case.
Learnings for employers
Ensuring to have clear policies outlined in the employee handbook and following procedures correctly. The respondent response followed their Equality, Diversity and Inclusion policy and Social media policy as a basis for actions taken.
Agnew v Police Service of Northern Ireland 2023
Supreme court decision on the Agnew V PSNI case, the employer loses holiday pay backpay case.
Background of the Claim:
The case of Chief Constable of the Police Service of Northern Ireland (PSNI) v Agnew centres around the dispute over how holiday pay should be calculated for employees. The PSNI calculated holiday pay based on the basic salary of their police officers and civilian employees, excluding any overtime and certain allowances.
This practice was challenged as it was not in line with European case law, which states that holiday pay should reflect an employee’s “normal pay,” inclusive of regular allowances, overtime, and commission. The discrepancy arose from the interpretation of the Working Time Regulations, which were implemented in Northern Ireland in 1998. These regulations, stipulated by the EU Working Time Directive, are intended to ensure fair compensation during annual leave periods.
The Supreme Court’s involvement was necessitated due to differing interpretations of these regulations and the subsequent impact on the calculation of holiday pay. The case clarified the legal stance on what constitutes a series of underpayments and the significance of gaps between these underpayments.
The outcome of this case had far-reaching implications, not only for the PSNI but also for a wide range of employers in both Northern Ireland and Great Britain, altering the landscape of holiday pay calculation and the potential financial liabilities associated with previous underpayments.
The Supreme Court confirmed that PSNI employees are entitled to back pay for underpaid holiday entitlements. A crucial part of the ruling was the rejection of the “three-month gap” rule. The court held that a three-month gap between underpayments does not necessarily break the series of deductions. This interpretation allows employees to claim for a continuous series of underpayments, even if there are gaps longer than three months.
The decision could lead to substantial financial implications for the PSNI, estimated between £30-40 million in back pay.
Learnings for employers
Employers must ensure that holiday pay calculations include regular allowances, overtime, and commission, aligning with the EU Working Time Directive.
This is particularly crucial in Northern Ireland, where there is no cap on the retrospective claim period. Compared to GB which is capped at two years on pay claim. Employers who have not been including these elements in holiday pay calculations may face significant back pay liabilities.
The ruling introduced the concept of a “composite holiday,” where different types of leave (EU entitlements, statutory entitlements, and contractual entitlements) are not necessarily taken in sequence. This adds complexity to leave management, as different rules apply to each type of leave regarding pay and rescheduling.
Conduct thorough audits of past holiday pay calculations to assess potential exposure to back pay claims. Adjust current holiday pay practices to ensure compliance and reduce the risk of future claims. Understand that correctly paying holiday pay now can limit future liabilities and employee dissatisfaction.
Pakalniskiene v Hotpursuit Enterprises Ltd 2023
The employer had fairly dismissed an employee following an incident amounting to gross misconduct, key learnings for employers here for how the process should be carried out.
The claimant worked for Hotpursuit Enterprises (the respondent) for 16 years, from September 2004 to August 2020 when they were dismissed for gross misconduct.
In July 2020 a supervisor, who was not the claimant’s line manager, submitted a grievance, that the claimant had been shouting abusive comments at the supervisor. The supervisor alleged that the claimant spoke in Lithuanian when making abusive comments that she was being ‘f***ed by Irish men and was a skinny bitch’. The supervisor was upset by the comments, as well as feeling intimidated and humiliated.
Upon receiving the grievance, the claimant was suspended and an investigation into the incident occurred. Two Lithuanian employees were interviewed as part of the investigation and confirmed the allegations detailed above. The claimant agreed she was in the car park but stated she did not make the comments and made counter-allegations against the supervisor. These were that the supervisor had said she was going to get the claimant dismissed and made threats towards the 2 witnesses about their contracts if they did not back up her complaint by confirming it with statements.
At the tribunal, the respondent made it very clear, that the supervisor had zero influence over the contracts of the 2 witnesses.
The claimant was invited to a disciplinary hearing on the 5th August 2020 with the allegation of gross misconduct. The tribunal described the hearing as ‘perfunctory’ (i.e. carried out without real interest or effort) due to the nature of the meeting. The respondent asked a few pre-scripted questions, apparently due to the uncomplicated allegations of the claim put forward. As the claimant already had a live final written warning on file, they were dismissed during the hearing.
The decision to dismiss was appealed. However, the appeal was unsuccessful following which the claimant submitted a claim for unfair dismissal.
The tribunal considered the reasonableness of the respondent to dismiss the claimant. The tribunal considered whether the respondent’s decision to dismiss fell within the ‘band of reasonable responses’. The tribunal found that whilst the respondent’s investigation and disciplinary hearing were basic, action was taken promptly. The tribunal stated there was little room for ambiguity to the allegations and the probable truth of it. Whilst ‘perfunctory’, the process carried out by the respondent met statutory requirements.
This resulted in the tribunal concluding that the respondent was justified in their decision of gross misconduct and dismissing the employee. The tribunal dismissed the claimants case.
Learnings for employers
This case gives an insight into the band of reasonable responses when applied to dismissal cases. Learnings for employers from this case, are the comments by the tribunal around the basic nature of the investigation and disciplinary, meeting narrowly the statutory requirements. This highlights the need for thorough processes in these circumstances.
Taylor v Farrans Construction & Ors 2023
Employer wins a case of fair dismissal through redundancy and a claim against age discrimination.
Background of claim
Mr Taylor (the claimant) was employed by Farrans Construction (the respondent) as a Crane driver for 3 years, from November 2017 to October 2020. When terminated the claimant was 66 years old, he had turned 66 during the redundancy process and one year away from the state retirement age.
Redundancies were deemed necessary due to the downturn in work following the pandemic. The respondent began with a voluntary redundancy process, in which 8 employees came forward. 4 were accepted and 4 were rejected, 2 of which were rejected due to their experience operating heavier cranes.
All 5 crane drivers were put into a pool for redundancy, including the claimant. The first consultation meeting was set to take place on the 24th August 2020, the claimant had requested a meeting, which took place on the 21st August 2020 with Mr Murphy. Meeting immediately before the first consultation meeting, during this meeting the claimant unknowing to Mr Murphy recorded their conversation. His reasons for doing so were due to him feeling Mr Murphy was acting as a double agent putting the business’s needs first, rather than having the claimant’s best interests.
The claimant continued to record the three consultation meetings, in which Mr Murphy was not involved in. Another complaint made by the claimant involving Mr Murphy stated he didn’t engage enough with the claimant.
Whilst all the employees scored high in the exercise, the claimant and another employee scored the joint lowest. This resulted in the scoring came down to the length of service and supervisor experience. In the beginning, only one employee was to be made redundant, but this was subsequently increased to 2 in August 2020.
The available alternative roles were emailed to both employees, with the other employee taking up a new role as a barge master. The claimant stated the alternative work was not suitable for him.
The claimant claimed the redundancy process was designed to get rid of him due to his age and reaching retirement age. However, the tribunal dismissed this claim because of the lack of evidence as well as the scoring matrix being developed before the voluntary redundancy exercise had been approved or rejected.
The tribunal concluded that the redundancy process and outcome were within the band of reasonable responses from the respondent. Stating their reasons for making the redundancy were fair and a fair process was carried out. As for the age discrimination claim, the claimant was unable to provide evidence which suggested that an act of age discrimination had occurred. This meant the burden didn’t shift the respondent in that regard. The tribunal dismissed the claimant’s claims.
Learnings for employers
Ensuring any decisions relating to redundancy, follow a previously agreed scoring matrix to ensure a fair process is followed. Decisions in this case were decided on the employee’s experience including supervision experience. The tribunal was able to state it was a fair process due to the scoring matrix.
We have also covered case law in Great Britain 2023!