Overseas snippets – July 2018

Harassment by emoji

Emojis are increasingly being used in workplace communications. According to overseas commentary, emojis (pictographs) have appeared in employment cases more frequently in recent years involving claims of harassment.There are a wide range of emojis now available, many of which are ambiguous and obscure facial expressions, hand gestures and symbols. Emojis are a form of slang and will mean different things to different people. The use of emojis often requires a degree of subjective interpretation regarding their meanings, which can result in misunderstandings. Recent events overseas suggest a significant increase in the number of harassment claims involving the use of text messages utilising emojis which are interpreted as conveying flirtatious or sexual messages. Such events raise interesting legal questions about whose interpretation of the intended meaning of emojis should carry the most weight.

Another concern for employers includes the appearance of professionalism when it comes to emoji use in employee communications. Research has found the use of emojis is associated with reduced perceptions of competence. The use of smiley face emojis for example, is perceived to imply a lack of seriousness and to detract from the message of the communication.

Employers are encouraged to consider the shift in cultural acceptance of the use of emojis in the workplace. The development of strong communication policies and the communication of such policies to employees is also considered helpful to employers’ management of risk that emoji use could convey harassing, offensive or otherwise inappropriate meanings.


Acceptance not inferred from lack of protest

The Court of Appeal in the UK has recently found that continued work without protest following a variation of contractual entitlements did not necessarily infer acceptance. Nottingham City Council had previously contractually provided its employees with an annual incremental pay progression. It then implemented a two-year pay freeze but no industrial action or grievances were brought by employees during this time. The Court of Appeal had to decide on the issue of whether the Council’s employees could be inferred to have accepted the variation in their contract by working under the pay freeze without protest. They decided that acceptance should not be inferred, particularly where the variation was wholly disadvantageous and where the employer had represented no variation of contract.


Notice of termination effective upon employee’s reading

The Supreme Court in the UK upheld a recent decision of the Court of Appeal as to when notice of termination is deemed to take effect. The employer gave 12 weeks’ notice of termination to the employee as required under the employment agreement. This notice was sent by ordinary post on 20 April but the employee only read the notice after returning from her holiday on 27 April. The issue was whether the letter was effective a) when it was likely to be delivered in the ordinary course of the post; b) when it was in fact delivered; or c) when it actually came to the attention of the employee (or when the employee had had a reasonable opportunity to read it).

For the employee, the decision would affect the amount of her pension entitlement because redundancy after her 50th birthday would mean she was entitled to a more generous pension. In the circumstances, she turned 50 on 20 July which happened to fall exactly 12 weeks after 27 April. The Supreme Court held that notice is deemed effective once the employee has read the notice of termination (or had a reasonable opportunity to do so). The notice in this case was therefore deemed to take effect from 27 April and the employee was entitled to the more generous pension.

NB: Some employment agreements and previous employment agreements expressly specified how notice could be given.

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