In this round up of recent cases we consider an employment tribunal decision on unfair dismissal following the sending of an email between two personal computers; a Court of Appeal decision on the termination of an employment contract on reciept of monies for payment in lieu of notice; an EAT decision on the dismissal of an employee engaged to cover maternity leave and the Supreme Court ruling on the use of successive fixed term contracts for UK teachers working in European schools.

Employee fairly dismissed for sending offensive email to a colleague's home computer

A recent employment tribunal decision has stated that an employee can be dismissed fairly for sending an offensive email from his home computer to a colleague's home computer.  In Gosden v Lifeline Project Limited, the email in question was a chain email sent by Mr Gosden to a colleague employed by HM Prison Service, one of his employer's biggest clients.  It contained material of a racist and sexist nature, and called on all recipients to pass it on.

The employment tribunal had to weigh up the employer's right to protect its reputation with an employee's right to a private life and held that the dismissal of the employee was within the range of reasonable responses open to the employer in the circumstances.  The main issue coming out of this case was not that the employee requested the information to be passed on, but that he had no control over whether or not the recipient would do so.  This took the email out of the realms of private life.  It should also be noted that the employer took care to consider properly the reason for the dismissal, which it identified as bringing the company into disrepute - one of the examples of gross misconduct set out in its disciplinary policy.  It would have been more difficult to rely on breach of an IT or computer use policy as these policies generally only cover misuse of company systems.

Payment in lieu is effective to terminate employment

The Court of Appeal has overturned a High Court decision by ruling that an employer did not need to tell an employee that his employment had been terminated pursuant to a payment in lieu of notice (PILON) clause in order for the termination to take effect. (Societe Generale, London Branch v Geys).  Mr Geys' contract of employment stated that termination would be effective when the PILON monies were paid into his bank account. There was no requirement to notify him of this payment, and it made no difference that the monies had been in his bank account for some time without him realising.

The Court of Appeal interpreted the PILON clause strictly, saying that to do anything else would be "an unjustified re-writing" of the clause.  All that was required by the clause was the payment of monies, and that was the point at which termination was effected.  Employers should aim to make their contractual terms as clear as possible to avoid a situation where an employee is not sure whether or not his contract has been terminated, thus avoiding potentially lengthy litigation.  This is especially important where, as was the case here, the termination date affects the employee's entitlement to valuable contractual benefits.

It should be noted that this decision does not affect the statutory concept of the effective date of termination for the purposes of bringing an unfair dismissal claim, which is distinct from the question of when, as a matter of common law, the contract terminates.

Terminating the employment of a worker employed to cover maternity leave

Section 106 of the Employment Rights Act provides that a dismissal is automatically for "some other substantial reason" if an employee is dismissed to facilitate the return to work of a woman returning from maternity leave.  It applies only if the employer has notified the employee writing that his temporary employment will end when the post holder returns from maternity leave and the dismissal is actually to facilitate the woman's return.

Mr Durrant had previously held a permanent contract with the Victoria and Albert Museum, but after a long tem absence owing to illness he was unable to work in his former role.  The Museum began its incapacity procedure and decided to dismiss him for incapacity on six months' notice.  He was then transferred onto a six-month fixed term contract to provide cover for a permanent employee who was on maternity leave in the Picture Library. His contract was extended when she opted for extended maternity leave.  When she returned to work, there was no longer a role for Mr Durrant and he was dismissed.  He claimed unfair dismissal, arguing that the real reason for his dismissal was redundancy.

The EAT held that section 106 did not apply, as the communication between the parties had stated only that the reason for his six-month fixed term contract was to “cover a period of maternity leave”.  It did not contain the required statement about future termination on the return of his colleague from maternity leave.  The matter was remitted back to the same employment tribunal, to allow them to consider again the reason for dismissal, taking into account that section 106 did not apply, and that the reason for dismissal could not, in the circumstances, be capability.

To ensure that they are not caught out on a technicality, employers should make sure that it is communicated in writing that a position is for maternity cover and will terminate when the post holder returns to work at the end of her maternity leave (Victoria and Albert Museum v Durrant).

Fixed Term Employees Regulations did not protect teachers at European schools

The Supreme Court has ruled that a government department's use of successive fixed term contracts for teachers working in European schools was objectively justified, as a rule was in place stating that the teachers could only work in the schools for a maximum period of nine years (Duncombe and others v Secretary of State for Children, Schools and Families).

The employees were teachers employed under a series of successive fixed-term contracts to work in European Schools.  European law limited the duration of employment of school employees to a maximum of nine years.  When their employment was terminated in accordance with those rules, the teachers sought a declaration that they were permanent employees by virtue of the Fixed-term Employees Regulations, which convert the contracts of employees who have been continuously employed for four years or more on successive fixed-term contracts into permanent employment contracts.  They also brought separate claims of unfair and wrongful dismissal.

The Supreme Court overturned the Court of Appeal and found in favour of the Department for Children, Schools and Families. It held that the last fixed-term contract, which brought Mr Duncombe's employment up to the nine year maximum, could be justified on the basis that the job was only ever meant to last for nine years, and this had been made clear at the outset.

The court did not need to decide whether the Regulations applied to Mr Duncombe's overseas employment.  A majority of the judges was "inclined to agree" with the Court of Appeal that they did, but said that, if the question had needed to be determined in this case, the court probably would have referred that question to the ECJ.  The Supreme Court also reserved for a later date judgment on whether Mr Duncombe had a strong enough connection with Great Britain and British employment law to pass the Serco v Lawson test and proceed with his unfair dismissal claim.

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