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!
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.
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.
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.
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.
Men are more likely to tell lies on their CVs according to a recent study
A quarter of those surveyed admitted to regularly stretching the truth on their CVs to secure employment. Previous work experience is the most common fib, with 47% of those listings referring to non-existent former employers.
False previous education was ranked second at 41%, closely followed by false personal interests at 20% as the next biggest lie. One in five workers who lied on their CV told perspective employers that they were proficient in programmes such as Excel and PowerPoint to help embellish their applications.
Here are six ways for employers to identify CV lies:
- Look out for skills without evidence
- Line up employment dates to make sure that they look legitimate
- Ask references similar questions to ensure that the match
- Check social channels like Facebook, Twitter and LinkedIn to see omitted information
- Look for obvious signs in interviews such as negative body language, lack of eye contact and shallow answers
- Run a background check: official sets of results will help verify that your new hire is who they say they are
Monitoring in the workplace must have a clear policy to back it up
Employers must be clear with their staff about their email and internet monitoring policies, after a new report from the TUC revealed more than half of UK workers believe that they are monitored at work.
The national survey of more than 1,200 UK workers found 56% of people felt that monitoring was going on in the workplace, including CCTV, browsing history and phone logs. There are many legitimate reasons why employee data may be used for monitoring purposes, such as in high risk, lone-working roles. It is important that employers are transparent about their use of data to monitor their workforces.
Any employer which has computers or online systems and allows employees to use them should have a policy reserving the right to monitor use of these systems. But employers must have reason to conduct the monitoring and cannot simply read personal emails on a casual basis without good reason. Failing to warn staff that monitoring is taking place could have legal consequences.
Covert monitoring can only be justified in exceptional circumstances. Employers should explain the reason for monitoring and how they intend to use any collected data.
While recent changes to data protection law via the General Data Protection Regulation have further safeguarded the limits to monitoring of staff, the TUC called for new protections to ensure employers only use surveillance for legitimate reasons, and the introduction of tougher enforcement measures to ensure workers are informed of monitoring technologies.
Dismissal was not in the “band of reasonable responses”
Two repair contractors who were fired for gross misconduct after they were discovered to have used company vehicles for personal purposes were unfairly dismissed, an employment tribunal has rules. While the employees were at fault for misusing the vans, the tribunal found their employer failed to thoroughly investigate the issue before dismissing them.
The company’s driver and vehicle policy dictated that the vans were only provided for carrying out work duties, and must not “under any circumstances be used for private purposes other than for ordinary commuting. Unauthorised use of a company vehicle is deemed to be gross misconduct and may result in dismissal.”
The company launched an investigation over the employees’ use of the vans, which were fitted with tracking devices, following an anonymous complaint. The tracker information showed that one employee had used his company van to travel to his mother’s house multiple times during one month, which was on his route home and that the other employee had taken his van to multiple locations, including to watch his son play football while on call and to go to the supermarket.
During their subsequent disciplinary hearing, the employees denied seeing the driver and vehicle policy, but the tribunal judge ruled this was unlikely to be true. Previous statements made by the pair suggested they simply found the guidance confusing and evidence showed that a paper copy of the statement had been mailed to their home addresses.
During his disciplinary hearing, one employee said he did not think the personal use of the van should be an issue if his route was on his way home, as long as he “wasn’t taking advantage”. He additionally cited his father’s recent death as a factor requiring him to make visits to his mother.
The second employee said he found the questions about journeys in the van “really tedious,” adding that “95% of the workforce do stuff on their way home”.
Both employees were dismissed for gross misconduct. They appealed the decisions on the grounds that they were not given any opportunity to correct their actions, and that they had not clearly understood the policy. They additionally complained that neither of them had previous disciplinary sanctions. However, the appeals were rejected.
The tribunal accepted the reason for the dismissal was misconduct, and that the employer had a genuine belief in that misconduct. However it found the policy around company vans was unclear and provided no explanation of the distinction between ‘private’ and ‘business’ use. When combined with the length of service and clear disciplinary records of each employee and the failure to properly investigate on the part of the employer, the dismissal was deemed unfair.
Employers must always ensure that the dismissal decision is within the range of reasonable responses. The tribunal Judge felt that the employer should have considered the employees’ length of service and previous clean disciplinary record. However, the tribunal also ruled any damages the employees received should be reduced, as they had contributed to their dismissals by knowingly contradicting the company policy on vehicle use.
An employee has won £17,000 for unfair constructive dismissal, after refusing to accept a pay cut
An employment tribunal hearing heard that the employee of driver recruitment agency since 2008 refused a request from the company to cut his hours in half. In 2015 he initially started working at the agency 40 hours a week, had his hours reduced to 32.
In 2017 the Managing Director then proposed that he should reduce his working hours from 32 to 16, with the reason being the agency’s loss of two contracts and a quiet period. This would have resulted in the driver losing £205 a week.
After reviewing his financial commitments, the employee was unable to afford the reduction and proposed a reduction from 32 to 24 hours, if his day rate increased from £102.97 to £110.00. He then confirmed the days which would work for him, alongside the revised day rate, via email. The MD responded, saying he would have “this” sorted, which was construed as acceptance of his proposal.
However, in June, the Managing Director reneged on the deal and offered a new contract which had to be signed. The employee handed in his resignation as a result of the enforced reduction in pay. The tribunal ruled “that a reduction of this magnitude was a serious matter” for the employee and that his employer “had fundamentally breached” his employment contract.
He was awarded £16,852.12 for unfair constructive dismissal. This included a basic award of £4,942.92 for his eight years of continuous employment at the company and a compensatory award of £11,882.20, which was increased by 10% for the employer’s breach of the Acas code.
The tribunal found the company had failed to comply with the Acas code of practice and said that the failure to treat the employee’s disagreement with the pay cut as a grievance. The judge ruled his response “fell short”.
Homeworking tips for employers
With increasing numbers of employers providing flexibility to their staff to work from home, homeworking as a method of working is relevant to many jobs. Homeworkers are covered by health and safety law in the same way as any other employed worker.
Below is some guidance for employers:
- Any organisation that wishes to implement a working from home arrangement should develop an appropriate policy.
- A job carried out effectively away from the main workplace can bring benefits both to the employee in terms of flexibility and to the employer in terms of reduced overhead costs.
- Employers are required to assess all significant risks and to make adequate arrangements for managing the risks to homeworkers.
- People working from home must be provided with adequate support to enable them to do their jobs efficiently.
- If display screen equipment (DSE) is to be used, employers must ensure that a DSE assessment is carried out with the homeworker and that health and safety requirements are met, including eye tests and the provision of appropriate equipment.
- Employers must ensure that any substances are assessed and suitably controlled and should provide appropriate personal protective equipment.
- Homeworkers should be trained in the use of any equipment provided, which should be suitable for the job, regularly maintained and appropriately guarded.