Hello everyone,
I hope you are all well. My blog has moved to the following address: http://www.scesolicitors.co.uk/news.
I continue to blog and I hope you will all continue to follow me.
Kind regards,
Samira Ali
Thursday, 14 June 2012
Sunday, 27 May 2012
Employment law proposals to help economic growth: update
For those of you
following my blog and/or keeping up with the rapid employment law proposals
which are ultimately to assist business growth in today’s challenging economic conditions,
may find this round up of this week’s events useful.
The
Enterprise and Regulatory Reform Bill
The Enterprise and
Regulatory Reform Bill, which was mentioned in the Queens speech this year, was
laid out before parliament on the 23 May. It is essential for employers to keep
up with the bill as it sets out a number of amendments to the current
legislation.
The Bill sets out
the following amendments:
1. A mandatory
period of ACAS conciliation before presenting claims to an employment tribunal (guidance
on this will be published in due course). I think this may help employment
disputes to be resolved without any litigation.
2. Extension of limitation periods to bring a claim to the employment tribunal. This is to allow for pre-issue ACAS conciliation. Under current law the time limit to bring most claims is three months less one day (for equal pay and redundancy payment claims it is 6 months less one day), this provides very little time for parties to resolve disputes and usually results in employees bringing tribunal proceedings to protect their position.
3. Introduction of 'legal officers' to make decisions in certain cases if all parties agree in writing.
4. Employment Appeal Tribunal (EAT) cases to be heard by a judge alone, unless ordered otherwise. This is unlikely to be the case where a complex discrimination and/or whistleblowing case is heard (perhaps the tribunal needs to be renamed the ‘monobunal’).
5. Power for Secretary of State to limit unfair dismissal compensatory award to a maximum between the national median earnings and 3 x median earnings. It has been confirmed by the Department of Business, Innovation and Skills (DBIS) that they are working from a median average earnings figure of £26,000. That means (if the power is exercised) that the compensatory award will be capped at somewhere between £26,000 (one year's earnings) and £78,000 (three years' earnings). Alternatively, power for the Secretary of State to limit unfair dismissal compensatory award to one year's earnings
6. Power for a tribunal to impose a penalty on employers of 50% of any financial award, subject to a minimum of £100 and maximum of £5,000, where there are "aggravating features" (not defined), with a 50% discount for payment within 21 days. We will have to wait for case law as to how “aggravating features” is defined however I am of the opinion it is likely that the tribunals will consider how employers conduct themselves during litigation, particularly if the employee remains to be employed by them.
7. The definition of 'qualifying disclosure' in whistleblowing legislation is to be restricted to disclosures "in the public interest" (not defined). This may certainly help unwarranted claims from employees, particularly as cases concerning ‘qualifying disclosures’ are complex and lengthy lasting on average from 5-10 days.
8. 'Compromise agreements' to be renamed 'settlement agreements'. I do not think that this is likely to have any real practical effect.
2. Extension of limitation periods to bring a claim to the employment tribunal. This is to allow for pre-issue ACAS conciliation. Under current law the time limit to bring most claims is three months less one day (for equal pay and redundancy payment claims it is 6 months less one day), this provides very little time for parties to resolve disputes and usually results in employees bringing tribunal proceedings to protect their position.
3. Introduction of 'legal officers' to make decisions in certain cases if all parties agree in writing.
4. Employment Appeal Tribunal (EAT) cases to be heard by a judge alone, unless ordered otherwise. This is unlikely to be the case where a complex discrimination and/or whistleblowing case is heard (perhaps the tribunal needs to be renamed the ‘monobunal’).
5. Power for Secretary of State to limit unfair dismissal compensatory award to a maximum between the national median earnings and 3 x median earnings. It has been confirmed by the Department of Business, Innovation and Skills (DBIS) that they are working from a median average earnings figure of £26,000. That means (if the power is exercised) that the compensatory award will be capped at somewhere between £26,000 (one year's earnings) and £78,000 (three years' earnings). Alternatively, power for the Secretary of State to limit unfair dismissal compensatory award to one year's earnings
6. Power for a tribunal to impose a penalty on employers of 50% of any financial award, subject to a minimum of £100 and maximum of £5,000, where there are "aggravating features" (not defined), with a 50% discount for payment within 21 days. We will have to wait for case law as to how “aggravating features” is defined however I am of the opinion it is likely that the tribunals will consider how employers conduct themselves during litigation, particularly if the employee remains to be employed by them.
7. The definition of 'qualifying disclosure' in whistleblowing legislation is to be restricted to disclosures "in the public interest" (not defined). This may certainly help unwarranted claims from employees, particularly as cases concerning ‘qualifying disclosures’ are complex and lengthy lasting on average from 5-10 days.
8. 'Compromise agreements' to be renamed 'settlement agreements'. I do not think that this is likely to have any real practical effect.
For those of you
who are interested in reading the bill here’s a link - http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0007/13007.pdf.
The
Beecroft Report
This report which
was commissioned by the DBIS is very controversial and has been released early
due to it being leaked to the Daily Mail earlier this week. The report sets out
the following recommendations:
1. Compensated no
fault dismissal; Mr Beecroft recommends that businesses with up to 10 employees
should be allowed to dismiss employees even when they are not at fault,
providing a set amount of compensation is paid. This would mean that the
employee would not be entitled to bring a claim for ‘unfair dismissal’ however
may still bring a claim for discrimination and ‘protected disclosures’.
He goes further
and proposes that the law of unfair dismissal should be scrapped from UK
legislation altogether! You can all imagine that this caused a lot of concern
from trade unions and employment lawyers. Vince Cable, the business secretary,
suggests the support for the proposal was minimal and through his interaction
with businesses this was not a big concern. Businesses were more concerned
about finances being a barrier to growth.
Personally I do
not think that the unfair dismissal laws will be scrapped from UK legislation
and neither do I think it causes businesses that much concern. For new
employers and business owners it is important that they educate themselves in
respect to what the law is and how it should be applied to their business. This
will ultimately help them run their business.
2. Transfer of
Undertakings (Protection of Employment) Regulations 2006 (TUPE); Mr Beecroft
proposes the following recommends:
(a) The EU should
be lobbied to change the TUPE Directive so that it does not apply to a business
that is in administration.
(b) If UK law
cannot be changed to incorporate harmonisation of the terms and conditions of
transferred workers and original employees after one year, again the EU should
be lobbied to amend the Directive.
(c) UK law should
be changed so that a transferring employer can make employees redundant before
they transfer to the new company if they would otherwise have been made
redundant immediately after the transfer for valid economic, technical, or
organisational (ETO) reasons.
(d) A more
detailed explanation of the meaning of the ETO exemption, based on case law,
should be made available to employers. I think this would be very useful as employers
find TUPE very difficult to understand.
(e) The service
provider provisions of the TUPE Regulations should be repealed and replaced
with a better way of identifying whether or not a transfer is subject to TUPE.
The DBIS are
currently running a consultation on this so watch this stop I will be updating
you in due course! Personally I wonder whether further amendments to TUPE may
cause further confusion as to their implementation.
3. Collective
redundancy consultations; Mr Beecroft has recommended that the consultation
period for collective redundancies should be reduced in some instances.
Currently statute
sets out that employers who wish to make between 20 and 99 employees redundant
within a 90-day period must consult for 30 days. This rises to 90 days if they
wish to make 100 or more employees redundant. Beecroft argued in his report
that this "penalises larger business" and imposes an extra cost of 60
days' wages on any business wanting to make more than 100 people redundant.
He proposes that
the consultation period for collective redundancies should be 30 days,
regardless of the number of employees the organisation wishes to make
redundant. He also argued that if the company is in a formal insolvency process
this should be reduced further, possibly to five days.
There is some
sense in this recommendation as companies under severe financial difficulties,
unsurprisingly find it difficult to undertake the consultation required of them
and sometimes this can lead to premature redundancies.
The Government has
already launched a call for evidence on the rules governing statutory
consultations on collective redundancies, looking in particular at the
consequences of reducing the 90-day consultation period to 60, 45 or 30 days.
The call for evidence closed at the end of January and the Government has not
yet published its response to the consultation, so let’s see what they say!
4. Third party
harassment under the Equality Act 2010; the provisions place a burden on an
employer to ensure that third parties do not harass their employees. The
Beecroft report suggests that these provisions should be revoked from the act
on the basis that an employer cannot control the actions of third parties
towards its employees.
In response, the
Government launched a consultation of the third-party harassment provisions
earlier this month.
5. Reform to
employment tribunals; The Beecroft report set out a number of measures to
improve the employment tribunal process. However, Cable has stated that recent
moves to simplify employment tribunals were not as a result of Beecroft's
recommendations.
The suggestions in
this area were very similar to the ones the government is looking at, for
example he suggested that tribunals should charge fees for bringing claims.
Phew I think I
have included a comprehensive guide to this week’s reforms, I hope everyone
finds them an interesting read and if anyone has any questions please do not
hesitate to contact me on samira.ali@scesolicitors.co.uk
or alternatively why not write a comment.
I look forward to
hearing your views on whether the proposed reforms will ultimately help
businesses grow.
Sunday, 20 May 2012
Are documents drafted by HR consultants privileged?
No, says the High Court in Water Lilly & Co Ltd –v- Mackay (1) DMW Developments Ltd [2012] EWHC 649 (TCC). The claimant in this case applied for an order against the second Defendant (D) to disclose, correspondence and relevant documentation, created by D’s retained claims consultancy (K).
D argued that the documentation requested attained legal professional or legal advice privilege as the parties working for the claims consultancy were qualified barristers and solicitors. However the court held that this was not enough.
The first thing the court explored was the relationship between D and K. The court noted that the retainer between D and K was for “contractual and adjudication advice”, there were no rates offered for the services of solicitors or barristers. There were neutral words used to describe some of the available services, and these were “Advocate” and “Legally Qualified Person”. Further they found the words; ‘solicitors can be retained’ suggested that these services were not included in the retainer.
The court held that the onus was on the D to establish that legal professional privilege or legal advice privilege applied and in this case this was not evidenced. The evidence was held to have established that D retained K not as barristers or solicitors but as an organisation to provide claims and project handling advice.
Further the court held that it was immaterial that Mr Mackay believed that he was dealing with practicing solicitors and barristers.
The disclosure was ordered. The judge did point out that this decision related only to legal professional or legal advice privilege, it did not deal with litigation privilege so this is yet to be tested.
This case highlights the importance of business owners/directors to instruct solicitors when taking any form of legal advice, particularly in respect to restructures which include redundancy and TUPE transfers. It is likely, moving forward, more claimant solicitors will seek applications for disclosure therefore ensure that when using any HR consultancy, there is a provision which includes the services of a ‘solicitor’ within the retainer.
If you are in a position where you are considering making redundancies or have won/lost a tender and need advice in respect to dealing with TUPE please contact me on samira.ali@scesolicitors.co.uk or 0113 350 4030 for a free initial consultation
Sunday, 13 May 2012
The Queens Speech 2012: effects on employment law
The Queens speech earlier this week was focused on economic and financial reforms intended to boast the UK economy out of dare I say it what the media had termed “a double dip recession”.
The Enterprise and Regulatory Reform Bill introduces the following changes employers should be aware of:
1. Reforms the employment tribunal system by providing more options for the early resolution of disputes through ACAS.
2. Allows father’s flexible working patterns to enable them to share parenting responsibilities with their partners. Unfortunately for employers no guidance has been provided as to how this will work in practice.
3. Strengthens the framework for setting directors’ pay and shareholder power so they can hold companies to account.
4. Repeals unnecessary legislation to help save businesses time and money.
Despite having the support of David Cameron, legislation to allow gay marriages will not be brought forward in the next parliamentary session.
Other reforms:
Thousands of public workers, including police officers, teachers and civil servants, will be affected by the cuts in their pensions through the Public Service Pensions Bill. Unions are continuing to protest and the Police Federation of England and Wales lead a protect in London on 10 May 2012.
The Bill introduces the following reforms:
1. Introduces a new basis for calculating public service pensions, based on the average earnings of a member over their career rather than their salary at, or near to, retirement.
2. Request people to retire later - with pension benefits normally paid at State Pension Age (earlier for members of the police, armed forces and fire fighters' schemes). Nobody will be made to work longer, but a fair adjustment will be made to their pension if they chose to retire earlier or later.
3. Introduces cost controls so that future unforeseen changes in the cost of pensions are shared by members and employers.
4. Introduces more commonality to the powers and processes across public service pension schemes
I found it particularly interesting to note that the Defamation Bill which reforms the law of defamation to include introducing a requirement that a statement must have caused serious harm for it to be defamatory in order to discourage trivial claims and creating new statutory defences of truth and honest opinion to replace the common law defences of justification and fair comment.
I am unsure as to whether the reforms will help the economy or whether reforms such as those outlined in the The Enterprise and Regulatory Reform Bill will merely add a further layer of complexity for employers to deal with. If you are an employer who has received a flexible working/sharing maternity leave application from a male employee and you are unsure as to how to deal with it please contact me me on 0113 350 4030 for a free initial 30 minute consultation.
For those of you interested in reading the Queens Speech in full, you may find this analysis useful: http://www.politics.co.uk/comment-analysis/2012/05/09/the-queen-s-speech-2012-in-full
The Enterprise and Regulatory Reform Bill introduces the following changes employers should be aware of:
1. Reforms the employment tribunal system by providing more options for the early resolution of disputes through ACAS.
2. Allows father’s flexible working patterns to enable them to share parenting responsibilities with their partners. Unfortunately for employers no guidance has been provided as to how this will work in practice.
3. Strengthens the framework for setting directors’ pay and shareholder power so they can hold companies to account.
4. Repeals unnecessary legislation to help save businesses time and money.
Despite having the support of David Cameron, legislation to allow gay marriages will not be brought forward in the next parliamentary session.
Other reforms:
Thousands of public workers, including police officers, teachers and civil servants, will be affected by the cuts in their pensions through the Public Service Pensions Bill. Unions are continuing to protest and the Police Federation of England and Wales lead a protect in London on 10 May 2012.
The Bill introduces the following reforms:
1. Introduces a new basis for calculating public service pensions, based on the average earnings of a member over their career rather than their salary at, or near to, retirement.
2. Request people to retire later - with pension benefits normally paid at State Pension Age (earlier for members of the police, armed forces and fire fighters' schemes). Nobody will be made to work longer, but a fair adjustment will be made to their pension if they chose to retire earlier or later.
3. Introduces cost controls so that future unforeseen changes in the cost of pensions are shared by members and employers.
4. Introduces more commonality to the powers and processes across public service pension schemes
I found it particularly interesting to note that the Defamation Bill which reforms the law of defamation to include introducing a requirement that a statement must have caused serious harm for it to be defamatory in order to discourage trivial claims and creating new statutory defences of truth and honest opinion to replace the common law defences of justification and fair comment.
I am unsure as to whether the reforms will help the economy or whether reforms such as those outlined in the The Enterprise and Regulatory Reform Bill will merely add a further layer of complexity for employers to deal with. If you are an employer who has received a flexible working/sharing maternity leave application from a male employee and you are unsure as to how to deal with it please contact me me on 0113 350 4030 for a free initial 30 minute consultation.
For those of you interested in reading the Queens Speech in full, you may find this analysis useful: http://www.politics.co.uk/comment-analysis/2012/05/09/the-queen-s-speech-2012-in-full
Sunday, 29 April 2012
Etiquettes of an Employment Tribunal
Very recently I was at the employment tribunal and very embarrassingly (for me) realised my client was not aware of the etiquettes of the tribunal. So I thought I would write a short blog post to help parties understand the rules of the tribunal (though please act with caution as they can differ from tribunal to tribunal):
1. When the tribunal panel enters and exits a room, stand up, and wait for permission to sit down or leave (unless informed otherwise at the outset of the hearing).
2.If you are a Claimant never leave the room without requesting an adjournment (witnesses can leave quietly for rest breaks).
3. When you are answering questions, try and keep an eye on the tribunal panel, if they are writing something down slow down to ensure they have made an accurate note of your answer.
4. When reading your witness statement out load (which over time we will see less of this) ensure that you stop, preferably at the end of the paragraph, whenever there is mention of pages to the bundle. Your advocate will usually request the tribunal panel to read the relevant pages. If you are representing yourself the tribunal judge is likely to ask you if you would like them to read the pages referred to.
5. Ensure you inform your advocate, or the tribunal panel (if you are representing yourself in person), to read all the pages which you believe will further your case. The tribunal panel does not read the bundle in advance of the hearing, and they will only read and (therefore refer to any subsequent judgement) pages which the parties have brought to their attention during the hearing.
6. Usually you do not, require permission from the tribunal judge to take off your jacket, however if you are representing in an unfamiliar tribunal, it will not hurt to ask for permission and may save you some embarrassment later.
That is all I can think of however if my fellow colleagues, can think of anything else, please do leave a comment.
1. When the tribunal panel enters and exits a room, stand up, and wait for permission to sit down or leave (unless informed otherwise at the outset of the hearing).
2.If you are a Claimant never leave the room without requesting an adjournment (witnesses can leave quietly for rest breaks).
3. When you are answering questions, try and keep an eye on the tribunal panel, if they are writing something down slow down to ensure they have made an accurate note of your answer.
4. When reading your witness statement out load (which over time we will see less of this) ensure that you stop, preferably at the end of the paragraph, whenever there is mention of pages to the bundle. Your advocate will usually request the tribunal panel to read the relevant pages. If you are representing yourself the tribunal judge is likely to ask you if you would like them to read the pages referred to.
5. Ensure you inform your advocate, or the tribunal panel (if you are representing yourself in person), to read all the pages which you believe will further your case. The tribunal panel does not read the bundle in advance of the hearing, and they will only read and (therefore refer to any subsequent judgement) pages which the parties have brought to their attention during the hearing.
6. Usually you do not, require permission from the tribunal judge to take off your jacket, however if you are representing in an unfamiliar tribunal, it will not hurt to ask for permission and may save you some embarrassment later.
That is all I can think of however if my fellow colleagues, can think of anything else, please do leave a comment.
Friday, 27 April 2012
What challenges does social media bring to management?
Employers are increasingly facing challenges in respect to dealing with employee’s and social media such as Facebook, Twitter and YouTube: especially as more and more industries trial the implementation of social media into their marketing plans.
As a solicitor, only yesterday did I attend a course on how social media works, how it should be used and implemented into my marketing strategy. So no doubt given the financial climate, many of us will be using it as a more cost effective way to connect with likeminded people and professionals we would like to do business with (on a reciprocal basis if possible).
So what do employers have in place to ensure that social media can be used safely in their business? There has been some case law and ACAS guidance which helps and assist companies when dealing with disciplinary issues arising from what can only be termed as social media misconduct.
There are two kinds of usage of social media which are prawn to result in disciplinary action, this is:
1. Posting videos, comments, photo’s revealing some form of work related misbehaviour on a social media forum e.g. ringing in sick and them shortly posting ‘off to Alton Towers’.
2. Expressing views which employers do not wish to be connected with their organisation.
Helpfully ACAS produced guidance in January 2011, in their ‘Social Media in the workplace’ http://www.acas.org.uk/index.aspx?articleid=3375. The 2010 my Job Group Survey found that:
- Over half of employees said that had never criticised or talked negatively about their workplace.
- While a third said they had, 19% of this group complained about their boss or owner of the company, 13% had complained/criticised their peers and 12% had criticised their direct manager.
Some commentators have suggested that the way to avoid disciplinary situations is to ensure that employees have a forum where they can let off steam, perhaps this suggestion implemented correctly could be the answer.
Case study’s from the media:
There have been a couple of cases in the media (perhaps ironically) which have been related to disciplinary action having arisen as a consequence of some form of social media. There was the first case of Joe Gordon in 2005 (has social media really been around that long?) who was dismissed as a result of a personal blog which occasionally referenced his work at Waterstone's. These references included details of his shift pattern and it referred to his boss as “evil”. Perhaps, partly due to the media coverage his dismissal was overturned on appeal.
Catherine Sanderson was another one people may recall. She was from memory the lawyer working for a British firm in France, again in a non-work related blog she occasionally referred to her firm and as a consequence was dismissed. She took her employers to a tribunal in France and received an award for wrongful dismissal.
Here in the UK we have recently had sportsmen being disciplined, an example that springs to mind is former Liverpool footballer, Ryan Babel, who was fined by the English Football Association for casting aspersions of the integrity of the referee, Howard Webb, by posting doctored photographs of him in a Manchester United shirt on twitter.
There have also been cricketers and Rugby players who have been fined due to making inappropriate comments on a social media platform.
What should a business have in place?
It will not come as a surprise to any of you, but the most important things would be a social media policy which is well defined and reasonable. This will ensure both management and staff fully appreciate the implications of comments being made on a social media forum.
Employers should ensure that their social media misconduct is not dissimilar to offline conduct.
Ethical considerations:
When considering whether an employee should be disciplined for misconduct from social media which centres around harming the reputation of the company, managers/owners should always consider the scale of the harm i.e. how harmful is it if the comment is read by a relatively small group of people.
How should a company formulate a policy?
If possible (and smaller companies may find this difficult) engage employees in the process of formulating a policy. Ensure that the policy is not too wide (for example making any attempt to set out that employees are responsible for comments made by their friends would be seen as being too wide and potentially unenforceable).
The following should be covered in your social media policy:
1. Network Security.
2. Acceptable behaviour and use for:
- Internet and emails.
- Smart phones.
- Social network sites and
- Blogging and tweeting.
3. Data Protection and monitoring.
4. Business objectives and
5. Disciplinary process.
Is there anything else I should be aware of?
There has been a recent tendency for employers during the recruitment and/or disciplinary investigations to use evidence from the employees Facebook or Twitter account and this can cause all sorts of issues not least the Human Rights Act 1998 (which is very quickly brought into the equation).
If you are an employer, owner or manager you should ensure that you are familiar with the Regulations of Investigatory Powers Act 2000 as material monitored without consent could lead to a claim against you. However, monitoring is not unlawful in the following circumstances:
1. Where the employer reasonably believes he has consent from the employee and
2. Where the employer is monitoring to prevent a crime, protect their business or to comply with financial regulations.
I hope you have found the above information useful and please remember if you are in the process of drafting a social media policy or disciplining an employee for social media misconduct please contact me for case specific advice ideally before any action is taken on 0113 350 4030 or alternatively samira.ali@scesolicitors.co.uk.
As a solicitor, only yesterday did I attend a course on how social media works, how it should be used and implemented into my marketing strategy. So no doubt given the financial climate, many of us will be using it as a more cost effective way to connect with likeminded people and professionals we would like to do business with (on a reciprocal basis if possible).
So what do employers have in place to ensure that social media can be used safely in their business? There has been some case law and ACAS guidance which helps and assist companies when dealing with disciplinary issues arising from what can only be termed as social media misconduct.
There are two kinds of usage of social media which are prawn to result in disciplinary action, this is:
1. Posting videos, comments, photo’s revealing some form of work related misbehaviour on a social media forum e.g. ringing in sick and them shortly posting ‘off to Alton Towers’.
2. Expressing views which employers do not wish to be connected with their organisation.
Helpfully ACAS produced guidance in January 2011, in their ‘Social Media in the workplace’ http://www.acas.org.uk/index.aspx?articleid=3375. The 2010 my Job Group Survey found that:
- Over half of employees said that had never criticised or talked negatively about their workplace.
- While a third said they had, 19% of this group complained about their boss or owner of the company, 13% had complained/criticised their peers and 12% had criticised their direct manager.
Some commentators have suggested that the way to avoid disciplinary situations is to ensure that employees have a forum where they can let off steam, perhaps this suggestion implemented correctly could be the answer.
Case study’s from the media:
There have been a couple of cases in the media (perhaps ironically) which have been related to disciplinary action having arisen as a consequence of some form of social media. There was the first case of Joe Gordon in 2005 (has social media really been around that long?) who was dismissed as a result of a personal blog which occasionally referenced his work at Waterstone's. These references included details of his shift pattern and it referred to his boss as “evil”. Perhaps, partly due to the media coverage his dismissal was overturned on appeal.
Catherine Sanderson was another one people may recall. She was from memory the lawyer working for a British firm in France, again in a non-work related blog she occasionally referred to her firm and as a consequence was dismissed. She took her employers to a tribunal in France and received an award for wrongful dismissal.
Here in the UK we have recently had sportsmen being disciplined, an example that springs to mind is former Liverpool footballer, Ryan Babel, who was fined by the English Football Association for casting aspersions of the integrity of the referee, Howard Webb, by posting doctored photographs of him in a Manchester United shirt on twitter.
There have also been cricketers and Rugby players who have been fined due to making inappropriate comments on a social media platform.
What should a business have in place?
It will not come as a surprise to any of you, but the most important things would be a social media policy which is well defined and reasonable. This will ensure both management and staff fully appreciate the implications of comments being made on a social media forum.
Employers should ensure that their social media misconduct is not dissimilar to offline conduct.
Ethical considerations:
When considering whether an employee should be disciplined for misconduct from social media which centres around harming the reputation of the company, managers/owners should always consider the scale of the harm i.e. how harmful is it if the comment is read by a relatively small group of people.
How should a company formulate a policy?
If possible (and smaller companies may find this difficult) engage employees in the process of formulating a policy. Ensure that the policy is not too wide (for example making any attempt to set out that employees are responsible for comments made by their friends would be seen as being too wide and potentially unenforceable).
The following should be covered in your social media policy:
1. Network Security.
2. Acceptable behaviour and use for:
- Internet and emails.
- Smart phones.
- Social network sites and
- Blogging and tweeting.
3. Data Protection and monitoring.
4. Business objectives and
5. Disciplinary process.
Is there anything else I should be aware of?
There has been a recent tendency for employers during the recruitment and/or disciplinary investigations to use evidence from the employees Facebook or Twitter account and this can cause all sorts of issues not least the Human Rights Act 1998 (which is very quickly brought into the equation).
If you are an employer, owner or manager you should ensure that you are familiar with the Regulations of Investigatory Powers Act 2000 as material monitored without consent could lead to a claim against you. However, monitoring is not unlawful in the following circumstances:
1. Where the employer reasonably believes he has consent from the employee and
2. Where the employer is monitoring to prevent a crime, protect their business or to comply with financial regulations.
I hope you have found the above information useful and please remember if you are in the process of drafting a social media policy or disciplining an employee for social media misconduct please contact me for case specific advice ideally before any action is taken on 0113 350 4030 or alternatively samira.ali@scesolicitors.co.uk.
Wednesday, 18 April 2012
Employment law changes from 6 April 2012
From 6 April 2012 the following employment law changes took effect:
1. The continuous service requirement for employees starting jobs on or after 6 April 2012 will increase to two years for unfair dismissal claims. Employees who started before 6 April 2012 will remain under the old regime, a years service. We are unlikely to see the true effect of this rule change until 6 April 2013.
2. Judges will be allowed to sit alone on unfair dismissal claims, where there are no complaints of discrimination or any other detriment. It is likely that all single issue, unfair dismissal claims will be listed to be heard by a single judge. Parties can however, make an application, for members to be present. Unsurprisingly, judges can decide they need their lay members (the trade union and HR representative) to make a decision on the issues to be decided on the day of the hearing (which may lead to postponements).
Unfortunately there is no further guidance in respect to the types of cases, judges will be allowed to sit alone, this will be decided on a case by case basis.
3. Witness statements shall be taken as read and ‘shall be the witnesses evidence in chief’. This is going to particularly impact on employees and employers who chose to draft their own witness statement (no doubt to save cost). Parties should take great care in drafting precise witness statements, if crucial details/information are missing, the witness will have to rely on the opposing advocate or the tribunal to ask them the appropriate question to bring the evidence to the tribunals attention.
Tribunals will be empowered to make a costs order if attendance of certain witnesses was not ‘necessary’ in deciding the issues before the tribunal and was seen as being a ‘time wasting’ exercise.
4. The tribunal will be granted the power to request parties to pay witness expense.
5. Deposit orders have been increased from £500 to £1,000.
The consultations for the introduction of fees for bringing claims and pre-tribunal conciliation continue – and I will ensure you are all kept updated.
1. The continuous service requirement for employees starting jobs on or after 6 April 2012 will increase to two years for unfair dismissal claims. Employees who started before 6 April 2012 will remain under the old regime, a years service. We are unlikely to see the true effect of this rule change until 6 April 2013.
2. Judges will be allowed to sit alone on unfair dismissal claims, where there are no complaints of discrimination or any other detriment. It is likely that all single issue, unfair dismissal claims will be listed to be heard by a single judge. Parties can however, make an application, for members to be present. Unsurprisingly, judges can decide they need their lay members (the trade union and HR representative) to make a decision on the issues to be decided on the day of the hearing (which may lead to postponements).
Unfortunately there is no further guidance in respect to the types of cases, judges will be allowed to sit alone, this will be decided on a case by case basis.
3. Witness statements shall be taken as read and ‘shall be the witnesses evidence in chief’. This is going to particularly impact on employees and employers who chose to draft their own witness statement (no doubt to save cost). Parties should take great care in drafting precise witness statements, if crucial details/information are missing, the witness will have to rely on the opposing advocate or the tribunal to ask them the appropriate question to bring the evidence to the tribunals attention.
Tribunals will be empowered to make a costs order if attendance of certain witnesses was not ‘necessary’ in deciding the issues before the tribunal and was seen as being a ‘time wasting’ exercise.
4. The tribunal will be granted the power to request parties to pay witness expense.
5. Deposit orders have been increased from £500 to £1,000.
The consultations for the introduction of fees for bringing claims and pre-tribunal conciliation continue – and I will ensure you are all kept updated.
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