December 2012 case update

Green light for (sensible) retirement conversations

Summary: Can employers hold retirement conversations with employees without committing age discrimination? Yes, says an Employment Tribunal, as long as these discussions form part of “sensible succession planning”.

The case is Quick v Cornwall Council and another.

Facts: Mrs Quick was the headmistress of one of four primary schools in a particular area of Cornwall. It had been clear since 2006 that Cornwall Council intended to form a partnership between these schools to reduce costs and maximise resources. As part of these proposals, the retirement or redeployment of some teachers was likely.

Several allegations were made against Mrs Quick between September 2009 and April 2010, the investigation of which caused a depressive illness from the end of 2009. Mrs Quick went absent on sick leave and never returned to her teaching duties. At a disciplinary hearing on 19 July 2011 the Council decided to dismiss Mrs Quick with notice. The reasons were serious misconduct and some other substantial reason on the grounds of an irretrievable breakdown in trust between the parties. Mrs Quick appealed the decision but was unsuccessful.

Mrs Quick brought unfair dismissal and age discrimination claims in the Tribunal. This was the first time that Mrs Quick had raised any allegations of age discrimination, the majority of which were said to occur in 2008. Her allegations included:

• a colleague asking if she had any plans to retire;
• a discussion between her and the chair of governors regarding her retirement; and
• a comment from the Senior Education Improvement Officer that “too many people carry on after they should have retired”.

The Tribunal did not uphold Mrs Quick’s complaint of age discrimination (or of unfair dismissal). In the context of the proposed amalgamation of local schools, the Tribunal said that it was sensible for the school to discuss possible retirement as part of the succession planning process. There was no finding of fact as to whether the comment “too many people carry on after they should have retired” was actually said to Mrs Quick, but nevertheless the Tribunal did not consider this to be discriminatory.

Implications:

This case is reassuring for employers that asking employees about their retirement plans is unlikely to be discriminatory, particularly in circumstances where there is valid succession planning. There is a recognition that businesses can and should carry out workforce planning. However, employers still need to exercise some caution as the facts of this case were fairly specific and it is only a first instance Tribunal level decision (so Tribunals are not required to follow it). When retirement is discussed employers should be sensitive to the particular issues of every case. In particular, such discussions should be carried out in the context of succession planning rather than encouraging a particular individual to leave due to reaching a certain age.

Social media: beware disciplining for non-work related comments

Summary: Did an employer act in breach of contract when it demoted a Christian employee for making comments about gay marriage on Facebook? Yes, said the High Court.

The case, Smith v Trafford Housing Trust, is available here.

Facts: Mr Smith was employed as a manager for a private housing trust (“the Trust”). In his contract of employment, Mr Smith agreed to take into account the values of the Trust and its Code of Conduct when performing his role, which asked employees to not promote their political or religious views and to promote a positive image of the Trust both in and outside work.

Mr Smith posted comments on his Facebook page expressing his disapproval of gay marriage. A colleague complained about this and, following a disciplinary hearing, Mr Smith was found guilty of gross misconduct. He was demoted to a non-managerial position which involved a 40% reduction in pay. Mr Smith did not raise a claim for unfair dismissal in the Tribunal, due to time limitations, but instead raised a claim for breach of contract in the High Court.

The High Court held that Mr Smith’s comments on gay marriage did not amount to gross misconduct and, as such, his demotion by the Trust amounted to a breach of contract.

The main reasons given for this decision included:

• no reasonable person would have thought that Mr Smith was expressing his views on the Trust’s behalf;
• the obligation under the Trust’s Code of Conduct not to promote religious and political views did not extend to Mr Smith’s Facebook entries;
• Mr Smith had been engaged in a Facebook conversation which could not be said to be “promoting” views;
• Mr Smith’s views were expressed on a personal website page, outside of normal working hours. The High Court rejected the argument that because 45 colleagues were Mr Smith’s friends and his Facebook page stated that he was an employee of Trafford Housing Trust, there was a work-related context; and
• Mr Smith’s comments were not particularly judgmental or disrespectful and any offense taken by colleagues was not reasonable when viewed objectively. The Court commented that upset caused by a difference of views was “a necessary price to be paid for freedom of speech”.

The High Court also held that Mr Smith’s unlawful demotion amounted to a dismissal, which would have been unfair. Therefore, if Mr Smith had brought an unfair dismissal claim he would have been entitled to compensation.

Implications:

Albeit a High Court decision, this case is more than likely to be used in future employment law cases on social media. Importantly, it is a warning to employers not to presume that they can restrict an employee’s freedom to express views on social media where these concern personal beliefs and do not obviously have a work-related context (such as being about the employer or work colleagues). It will not be assumed that comments on social media sites are posted in a work-related context simply because the employee has identified his employer.