Was the posting of an offensive image on Facebook carried out “in the course of employment”?
in this case, according to the Employment Appeal Tribunal (EAT) in its
judgment in the case of Forbes v LHR Airport Limited. The EAT stated
that whether something is done in the course of employment, either in
the ‘virtual landscape’ or the physical work environment, is a question
of fact for the Employment Tribunal to decide in each case having regard
to all the circumstances.
Mr Forbes (the Claimant), was a
security officer working at Heathrow Airport. One of his colleagues, Ms
Stevens, posted a discriminatory image of a golliwog on her Facebook
timeline with the caption “Let’s see how far he can travel before
Facebook takes him off”. Another colleague of Mr Forbes and Ms Stevens
(who was a friend of Ms Stevens on Facebook) showed the image on Ms
Stevens’ Facebook page to Mr Forbes (who was not a Facebook friend of Ms
Stevens). Mr Forbes raised a formal grievance about the image which was
upheld and Ms Stevens was disciplined. Mr Forbes was subsequently
rostered to work with Ms Stevens. He complained and was moved to another
location without explanation.
Mr Forbes brought
an Employment Tribunal claim of racial harassment and argued that LHR
Airport Limited (LHR), as his and Ms Stevens’ employer, was liable for
Ms Stevens’ actions in posting the image. The Employment Tribunal
decided, however, that Ms Steven’s posting of the image was done out of
work, on a personal device and the posting was only shared amongst a
private group, which did not include Mr Forbes. The Tribunal decided
that Ms Stevens’ actions were not carried out “in the course of
employment” and so LHR was not liable.
Mr Forbes then appealed
to the EAT, who dismissed the appeal. The EAT decided that the factors
relied upon by the Tribunal were correct. Other factors the EAT
considered included that Ms Stevens was not at work when the image was
posted, that the image had not made reference to LHR or any of its
employees and that Ms Stevens did not use LHR’s equipment in sharing the
Can an employer rely on a breach of the immigration rules to argue that an employment contract is unenforceable?
No, where the circumstances are as in the case of Okedina v Chikale, decided the Court of Appeal (CA).
Chikale was employed by Ms Okedina in Malawi to look after her parents.
They both then came to the UK and Ms Chikale continued to work for Ms
Okedina in the UK as a domestic worker. Ms Okedina applied for a visa
for Ms Chikale, but when doing so provided false information. Ms Chikale
was granted a visa, but then remained in the UK and continued working
for Ms Okedina after the visa expired. Ms Okedina told Ms Chikale that
the steps needed to get an extension to the visa were being taken. Ms
Okedina applied for an extension to the visa in Ms Chikale’s name, but
when making that application Ms Okedina (without Ms Chikale’s knowledge)
falsely claimed that Ms Chikale was a member of her family and the
application was refused.
When Ms Okedina dismissed Ms Chikale, Ms
Chikale brought Employment Tribunal claims of unfair dismissal and
unlawful deduction from wages. Ms Okedina argued that those claims could
not succeed, as Ms Chikale had been working illegally and so her
contract of employment was unenforceable.
The CA reviewed
illegality under both statute and common law and decided that common law
illegality did not apply in this case, due to the fact that Ms Chikale
did not knowingly participate in any illegal performance of her
employment contract. It was Ms Okedina who concealed from Ms Chikale the
fact that her visa had not been extended.
In relation to
statutory illegality, the CA decided that the Immigration Asylum and
Nationality Act 2006 was not directed at those working illegally, but
instead imposed penalties on those who employed people who were working
Ms Chikale had not knowingly participated in any illegality and so her Employment Tribunal claims could proceed.
Was an agency worker entitled to be offered the same number of hours of work as those performed by a permanent employee?
No, according to the Court of Appeal (CA) in the case of Kocur v Angard Staffing Solutions Limited.
Claimant, who was an agency worker working at Royal Mail, argued that
he was entitled to be offered a 39 hour week, on the basis that this was
a standard working week for full time directly employed workers at
The Agency Workers Regulations 2010 entitle an agency
worker to the same conditions of work as a permanent employee, but this
does not extend to an entitlement to be offered the same number of hours
The CA concluded that the purpose of the Regulations was
to ensure the equal treatment of agency workers and permanent employees
while at work, and in respect of rights arising from their work. The
Regulations did not, however, regulate the amount of work which agency
workers were entitled to be given.
Should holiday pay entitlement
for ‘part-year’ workers (e.g. term-time only contracts) be calculated
under the Working Time Regulations on the basis of 12.07% of annual pay?
No, according to the Court of Appeal (CA) in the case of Brazel v The Harpur Trust.
Claimant was a music teacher in permanent employment, but working
term-time only. She worked variable hours and was paid for the hours
she worked, but during the school holidays she gave no lessons and
performed no other substantial duties. She was required to take her
annual leave during the school holidays. Her contract stated that she
had the right to 5.6 weeks’ paid annual leave, in line with the Working
Time Regulations 1998 (WTR) and the Trust made three annual payments in
respect of her leave, those payments being made in April, August and
December. On each occasion, her holiday pay was calculated as 12.07% of
her earnings in the preceding term. That calculation was based on the
fact that for a full year worker who gets 5.6 weeks’ paid leave and
works the other 46.4 weeks of the year, their holiday pay is a sum equal
to 12.07% of the pay they receive for the weeks they work – that is,
(5.6/46.4) x 100 = 12.07%.
The Claimant argued, however, that
this was not the correct way of working out her holiday pay under the
WTR. She argued that for each of her 5.6 weeks’ paid leave, she should
be paid her average week’s pay and that (under section 224, Employment
Rights Act 1996) this average should be based on the weeks for which she
worked and therefore was paid. This would mean that based on her
working and being paid for 32 weeks each year (the total term time), the
correct calculation would be (5.6/32) x 100 = 17.5%.
The CA agreed with the Claimant’s approach.