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Helpdesk - latest queries, plus Morrish legal news

2 March 2012

Social media use, career breaks and redundancy and relocations.

If you have a question about your workplace rights, call our employment law specialists on 0800 3282673 in the UK or 1800 805272 in the Republic of Ireland or email helpdesk@tssa.org.uk. Hours: Monday to Thursday 8am–6pm Friday 8am–5pm

Off your Face(book)?
Q. I was made redundant and asked to sign a compromise agreement, which I did. After our leaving party I put some less than complimentary comments about the company on Facebook. They say this was gross misconduct, withdrew the Compromise Agreement and dismissed me without notice. I thought once I had signed it they had to honour it.
A. Compromise agreements last forever unless one of the signatories breaks it or it can be shown that one of the parties was misled into signing it. Before you signed it you were advised by a solicitor, who will have gone through each clause with you to make sure you understood what you were signing. One of those clauses was that you did not bring the company into disrepute. Having done so on Facebook you breached the terms of the agreement – and no doubt saved the company a lot of money. Our lawyers are of the opinion that sacking you falls within the ‘Band of Reasonable Responses’ test, so we could not support a claim for unfair dismissal.
I say this time and again and offer no apologies for repeating myself – be very careful what you put on social networking sites. Employers can and do read them. And don’t hit the send button unless you are sober.

Career breaks and redundancy
Q. Late last year I returned from a six month career break. Our shop is due to be shut down and I am being made redundant. The company says I don’t qualify for redundancy pay as I’ve not been there two years, but I was with them for fifteen years before I went off to South America. Doesn’t that count?
A. Unfortunately no. Generally speaking, and certainly with the travel agent you work for, ‘career break’ is a bit of a misnomer. In fact what you did was resign, with the promise that you might have a job when you return (but with no guarantees – check the company handbook). Your career break was a break in service, and so you are now unfortunately a new entrant again.

Relocation or redundancy?
Q. My role has been moved to a depot forty miles away and increased from one to three posts, but it is exactly the same job. I was expecting to transfer, as the new location would be a lot more convenient for me, but the company has said I am redundant and have offered me a compromise agreement. What should I do?
A. A redundancy occurs where the work ceases, reduces or moves to a new location, so you are indeed redundant. However, the company has a duty to mitigate the effects of redundancy where possible and should consider offering you a suitable alternative job. As you regard the new location as suitable you should be identified with one of the jobs there, especially as they are expecting you to train the two people they have already appointed. If the redundancy is genuine, why are they offering a compromise agreement? They usually only need that if they are worried you might have a case to take to a tribunal. Submit a grievance over unfair selection for redundancy. You will need to exhaust the internal grievance before we can think about going to a tribunal.

 

Member compensated after wet floor foul-up

“This was always about getting the company to change a bad system. It was never about the money,” says Jacqueline, an engineer with a rail maintenance firm. Jacqueline had been walking through a public area of a station when she slipped in on an unmarked wet floor area and badly fractured her wrist.

“A passenger had spilled a carton of juice on the floor about 10 minutes before I arrived. The midday cleaning supervisor had already mopped up the spillage and asked a colleague to retrieve a warning sign for her to put up. Although the weather was dry, there had been a few incidents throughout the station and she had used all the warning signs on her cart. The colleague then got diverted with other tasks and the cleaning supervisor was asked to attend to something else by the station manager. She told him she couldn’t leave without putting up the sign, but he called back saying his problem was more urgent and she had to attend straight away.”

The cleaning supervisor asked another member of the station staff to warn passers-by of the wet floor until a warning sign could be set up.

“I think the cleaning supervisor was trying very hard to do the right thing, but the station manager is known for being a bit stroppy. If she hadn’t gone the second time he called ... well, let’s just say she felt the smart thing to do was whatever he wanted.” The other member of staff who had been asked to watch the area had seen Jacqueline approach. Just as she was nearing him, a passenger diverted his attention with an enquiry and Jacqueline walked straight into the still damp area, slipping and falling to the floor.

“Because of the nature of myjob,whenIgoto stations I don’t travel light. I have documents with me, a laptop, my mobile, all the safety gear including two different types of footwear in case I need to get out on the tracks or into the substations. I was laden with my bag and the paraphernalia and when I slipped I went down like a ton of bricks. I tried to put my hand out to cushion the fall and that’s how I got a displaced fracture in my wrist,” says Jacqueline. “The cleaning supervisor was mortified when she heard about my fall, and she came to me straight away to say sorry. But honestly, she was not to blame. The station manager should have given the spillage priority. What if this had happened to a passenger or some other member of the public? The cleaning supervisor was trying to do the right thing.”

After noticing a report in TSSA’s Journal magazine, Jacqueline decided to make a call.

“My job revolves around maintaining every last detail of lineside equipment so that the network can work as smoothly as possible. Yet I fell and got hurt because someone who should know better decided to over-ride a safety measure. I guess he’ll think twice before trying that again.” Jacqueline was put in touch with John at Morrish Solicitors, TSSA’s legal experts in accident and injury claims. John contacted the employer, alleging they had failed to take reasonably practicable measures to maintain a safe work environment, had breached regulations and their duty of care to an employee.

“As well as the fracture, my right thumb already had arthritis which was exacerbated by the accident. I didn’t need to take much time off work, but I did have to move to light duties, which I was not happy about.”

After initial negotiations, the employer accepted liability for the accident and agreed to pay damages for her injuries and financial loss. Shortly before the case was due in court Jacqueline accepted a damages offer of £9250 plus payment for physiotherapy and damage to her property. “What I really wanted was for the station manager to say to me ‘Sorry, that was my fault’. He never has, of course, but the Regional Director has since put new systems in place so that front line staff can put safety first without feeling they are risking their livelihoods.”

Based on a real-life story. Some details have been altered to protect the identity of the victim. Morrish Solicitors offers free personal injury legal advice for TSSA members and their family members. Whether the injury occurred at work or completely unrelated to work, Morrish Solicitors provides expert legal advice you can trust. Call 0800 093 0353.

Morrish Solicitors is a Limited Liability Partnership and regulated by the Solicitors Regulation Authority.

 

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