In this age of email, text, voicemail and tweets employers need to be alert to the need for professional communications at all times with potential and actual employees. Two recent cases have highlighted these dangers.
Ever sent a text and then wondered whether you’d sent it to the right person?
In the matter of Pawlicka v The Pier Trading Company Ltd the Tribunal did not believe the employer’s “innocent” explanation for the text message that it had sent the employee by accident, which referred to the timescale for her departure from the company.
Miss Pawlicka was a manager at the Respondent’s cafe in Brighton. She was sent a text message by her line manager Ms Parker, which was intended for the owner of the cafe, Mr Whelan. The text stated that a potential replacement for Miss Pawlicka was being interviewed and asked when it was expected Miss Pawlicka would be leaving. Shortly after, Miss Pawlicka received a second text message from Miss Parker, in which she apologised for her first text, but said that she and Mr Whelan had been discussing Miss Pawlicka’s position.
Miss Pawlicka was confused by the messages and decided to talk to Miss Parker when she next attended work on the Saturday. However, she received a voicemail from Miss Parker that said that she could have the weekend off, and that “it would be better for the business and all of us if we had a chat on Monday about the situation”. Miss Pawlicka decided not to wait until Monday, and went to see Miss Parker on Friday 30 October.
At the meeting, Ms Parker allegedly told her that the two of them could not work together and that she and Mr Whelan thought it would be better to settle her contract. Miss Pawlicka concluded that she had been dismissed at the meeting. The Company alleged that there had been no dismissal, that the text message mistake was “perfectly innocent” and that the meeting had merely been a discussion about ongoing issues with the working relationship between Miss Pawlicka and Miss Parker.
A further meeting took place between Miss Pawlicka and the Company Secretary, Mr Webb. Miss Pawlicka alleged that at the meeting settlement options were discussed and she was paid her wages for October. The Company argued that at the meeting Mr Webb had tried to persuade Miss Pawlicka not to leave, but the Tribunal preferred the evidence of Miss Pawlicka. The Tribunal could not understand why, if Miss Pawlicka had not been dismissed at the meeting on 30 October, Mr Webb had given her wages to her. It preferred Miss Pawlicka’s account of the meeting, and found that settlement was indeed discussed.
The Tribunal found that that any reasonable employee would have reached the conclusion that he or she had been dismissed under the circumstances. As the Company had not established a fair reason for dismissal the Tribunal held that Miss Pawlicka’s dismissal was unfair and awarded her almost £11,000 in compensation.
Best practice
Ideally employers should avoid text messaging as a form of communication in business because of the dangers highlighted here, however, if you must contact staff in this way it is essential that you take as much time and care when sending a confidential text as you would in sending any other written correspondence.
…or sent an email to the wrong recipient?
In the case of Quigley v London Borough of Lewisham ET/2300679/0, the Employment Tribunal made the unusual finding that a job applicant was subjected to harassment when he was accidentally sent an internal email that he felt was dismissive of his application.
Mr Quigley, who suffered from dysphasia (impairment of speech and verbal comprehension) applied for a position with the London Borough of Lewisham. Unfortunately, Mr Quigley missed the application date because his disability had caused him to be unwell and the council refused to consider his application.
Mr Quigley emailed the manager directly and asked him to reconsider. Intending to forward an email to HR to ask them to explain the council's rules and why it could not make an exception, the manager accidentally replied to Mr Quigley. Mr Quigley expressed his disappointment and demanded reasons to justify the decision. Mr Quigley was invited to resubmit his application.
As part of resubmitting his application, Mr Quigley requested as a reasonable adjustment, to see any interview questions to be asked of him, five to ten minutes in advance of the interview. Although the council orally agreed to this, when Mr Quigley attended the interview the council gave no acknowledgement of Mr Quigley's request for extra time and did not give him the requested time.
Mr Quigley's application was unsuccessful and he alleged that because of his condition, the limited time had put extra pressure on him and that he had been "confused and intimidated" prior to the interview. Mr Quigley claimed direct and indirect disability discrimination, disability harassment and failure to make reasonable adjustments.
The Tribunal held that the accidental sending of the email was a "harsh and hurtful" message; the manager was aware of Mr Quigley's disability and Mr Quigley had been distressed when he received the email. It therefore constituted harassment. The Tribunal also took into account the manager's failure to apologise and his negative approach to the council's policy of encouraging applications from those with disabilities.
The Tribunal also held that the council had failed to make reasonable adjustments. They had ignored or treated in a cursory manner, Mr Quigley's requests for an extra few minutes to review questions at interview. The Council were also held to have directly discriminated against Mr Quigley on the basis that he was not recruited, perhaps as a result of embarrassment over sending him an email in error; a non-disabled comparator would not have been treated this way.
Best practice
Although this is a slightly unusual case on its facts, this is a timely reminder that employers need to be vigilant when dealing with both job applicants and employees who may have a disability and the need to consider what reasonable adjustments can be made both for the recruitment process and during the employment relationship.
It is important to note that the definition of harassment is interpreted by Tribunals very broadly and includes any unwanted conduct that has the purpose or effect of violating a person's dignity or creating an offensive, intimidating or hostile environment.
On a lighter note
This month rather than looking across the pond we’ve gone to Australia where “planking” has become an issue for employers.
For the uninitiated, “planking” can be traced back to 1997 in Europe and Japan when it was known as “the laying down game”. Participants lie down with their arms at their sides and are photographed. Most importantly, the act has to be performed in an unusual public place (the more unusual the better).
Woolworths sacks workers for "planking" on meat grinder (among other objects)
Woolworths (Australia’s largest retailer and employer) has sacked eight employees for “planking”, which it considers a breach of health and safety. According to the report, Woolworths’ employees were sacked for planking on:
a 2m high shelving unit;
a mincing machine;
a pile of milk crates;
trolleys; and
display units.
Some of the planking was photographed and put onto Facebook, where the company discovered it. Woolworths has said that “it’s not about being the fun police; it’s about making sure people are looking out for their own safety”.
This comes after two Australian workers gained worldwide publicity after being sacked by Santos for planking on two smoke stacks 60 metres in the air at their refinery in Whyalla, South Australia.
The lying down game made news in the UK in September of 2009, when seven doctors and nurses working at the Great Western Hospital in Swindon, England were suspended for playing the lying down game while on duty and wearing uniform. Staff were photographed on planking on resuscitation trollies, ward floors and a heli-pad. Fifteen others were involved in the “game”.
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