September, 2018

How to counteract misuse of social media at work

Workplace social media policies are increasingly required to counteract inappropriate employee use of social media.

The majority of employees have access to Facebook, Twitter, Snapchat but despite this, according to a recent survey, almost one third of UK companies still don’t have social media policies in place.

In 2001, a pub manager was dismissed for gross misconduct after posting offensive comments on her Facebook account after a disagreement with customers. The employer had a comprehensive social media policy, which influenced the tribunal’s decision to uphold her dismissal.

But what about LinkedIn? A recent case looked at the ownership of a client database brought to the company by a new employee and concluded that an employee’s contacts stored electronically in Outlook belonged to the employer, regarding it as the employer’s property as it was created in the employer’s time using its resources and under its control and supervision.

Having a well written, up-to-date social media policy is a necessity for every business!

  • Posted on September 14th, 2018

Reduction in limit for personal injuries criticised by Trade Unions

Critics have slammed the government’s plan to double the small claims court limit for personal injuries to £2,000, potentially discouraging thousands of injured workers from bringing cases against their employers. The change is part of the government’s wider reforms programme for the civil justice claims system.

The limits adjustment would mean anybody suffering an injury at work likely to pay less than £2,000 for a successful claim would need to go through small claims as opposed to using the fast track system, making it more difficult to recover costs.

It is thought that this could result in an upsurge of claims against employers where individuals do not have specific legal advice to determine whether a claim is worth pursuing or not. This may, in turn, cause employers to spend more on defending the personal injury claim.

Trade Unions have warned that increasing the limit to £2,000 will restrict access to justice for injured workers and have a damaging effect on workplace health and safety as negligent employers are less likely to face the consequences in court.

  • Posted on September 14th, 2018

The importance of strong absence management policies

The number of people attending work while ill has more than tripled since 2010. A recent report has found that 86%  of 1,000 organisations surveyed had noticed staff coming to work while ill – compared to just 26% eight years ago.

Sickness in the workplace is inevitable but it is important to have clear policies relating to the reporting and monitoring of absence:

  • Employees should report their illness in advance of the time they are due to start work
  • There should be a specific policy in contracts or handbooks setting a deadline and stating who to call in the event of absence
  • Employers are not legally obliged to allow staff time off work for visits to the GP or dentist. The policy can state that employees attend these appointments outside of work hours, take annual leave or make the time up later on.
  • If an employee is ill for seven calendar days or more, they need to supply a GP’s fit note. For absences of seven days or fewer, employees can self-certify.
  • Those who are employed, earning at least £113 a week and who have been off work for four consecutive days are entitled to statutory sick pay (SSP). The current rate of SSP is £89.35 per week and can be paid for up to a maximum of 28 weeks for the days employees usually work. SSP is payable after three ‘waiting days’ of absence.

There is no rule that says an employer cannot contact an employee during a period of sick leave. However, contact should be handled sensitively, particularly where someone is suffering from mental health problems or work-related stress and they might find regular contact from their employer distressing. Again, the policy should set out the amount of contact and by whom, during absence.

  • Posted on September 14th, 2018

Employers complain that they can’t collect ethnicity data

More than half of employers feel they face barriers when collecting ethnicity data, which means they could face problems calculating their pay gap. According to an Equality and Human Rights Commission (EHRC) report a third of businesses felt collecting ethnicity data was “too intrusive”, while a quarter thought “employees did not want to share the information”.

The report revealed that just 3% of UK employers analyse pay data to explore any differences by ethnic group. While three-quarters of employers said workforce diversity was a priority, only 36%  said they kept data on ethnicity. Of those who collected data on staff pay, less than a quarter of employers said it could easily be broken down by ethnicity.

Data protection issues have recently been in the spotlight with the implementation of the GDPR, and it is crucial that employers allay employee concerns about why and how personal data collected for monitoring purposes is used.  Employers should be transparent and use monitoring to check how well their equality policy is working; analyse the effect of their policies and practices on different groups; and highlight possible inequalities and investigate their underlying causes.

  • Posted on September 14th, 2018

Don’t assume your restrictive covenant has “teeth”

Many employers will rely on a “non-compete” or restrictive covenant clause in the contract of employment to give them reassurance that their employees won’t start a business in competition or work for a competitor.

But in reality, how easy is it to enforce these clauses? In fact, the starting position of any court hearing a case where an employee is accused of breaching a restrictive covenant is that the clause itself represents an unenforceable restraint on normal trade! This is a high bar and the employer will have to demonstrate damage or detriment to its business to have any chance of success.

If an employer wishes to start legal proceedings against an ex-employee whom they believe may be breaching their restrictive covenant the process is for the employer to raise an interdict or interim interdict in Scotland (or an injunction in England and Wales) and use evidence that the employee has already breached the contractual clause, or provides evidence that there is reasonable belief that it will be breached. 

The interdict may be granted without the employee’s knowledge and this kick starts the process of bringing proceedings in either the Sheriff Court or the Court of Session.

It may be sufficient for the employee to confirm that they have no intention of breaching the contractual clause; in which case the court will remove the interim interdict. However if an interdict is granted and the employee fails to comply they will be found in contempt of court and may receive a sentence of up to three years in prison, a fine or both.  In the Sheriff Court the maximum prison sentence and fine are three months and £2,500.

The court will have to decide if:

  • the covenant is enforceable
  • whether the employee has breached the covenant
  • whether the breach has caused the employer loss and how the loss should be measured.

What is clear is that any restrictive covenant can only be enforced if it is proportionate and a necessary means of protecting the business of the employer.  It is it deemed to be too wide it will not carry sufficient weight to be enforced.

  • Posted on September 14th, 2018

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