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New provisions of note to private landlords and tenants are about to come into force in England and Wales as a result of the Localism Act. The changes affect the tenancy deposit scheme for ASTs (Assured Shorthold Tenancies) and the main points are:

Welcome to the new edition of our e-newsletter for businesses. Once again employment law is to the fore with a number of changes to note. All businesses also need to be aware of the revised timetable for the introduction of compulsory pensions. The rise Social Media means that employers  Read More...]]> Download pdf

Welcome to the new edition of our e-newsletter for businesses. Once again employment law is to the fore with a number of changes to note. All businesses also need to be aware of the revised timetable for the introduction of compulsory pensions. The rise Social Media means that employers need to make policies and procedures to deal with this and we provide here a brief run down of some of the issues to be taken into account.

Employment Law Roundup

From 1st February 2012 the maximum compensation for unfair dismissal has been raised from £68,000 to £72,300.

There will be a new flat rate for maternity and paternity pay from 1st April 2012 of £135.45 per week for employees earning over £107.

Statutory sick pay is also to be increased to £85.85 per week (effective 6th April)

Pension Reform – Revised Timetable for Compulsory Workplace Pensions

In January the Government announced changes to implementation dates for automatic pension enrolment. This means that the smallest companies (of less 30 members) will now until not need to comply until April 2017. See full timetable:

http://www.dwp.gov.uk/newsroom/press-releases/2012/jan-2012/dwp010-12.shtml

Employment Law Protection Scheme

To help guide businesses through the frequent changes to the employment law and protect them from expensive Tribunal claims we have launched Employer Assist – a comprehensive advice package with built in insurance cover. For an affordable £90 per month (depending upon the number of employees) you will be able to focus on your business instead of worrying about staff problems Unlike many other such schemes our helpline is run by solicitors, not call centre staff. For more information see:

Employers have never been more at risk of litigation suits by employees. Just one issue ending up at an Employment Tribunal can be enough to bankrupt a small company – the average award last year was more than £14,000 and the highest award was £289,000 (a discrimination case).

We can offer as simple solution to employment law worries, giving you the chance to get on with running your business.
The Employer Assist package includes:
• telephone advice line – manned by experienced, qualified solicitors
• initial review of all employment policies to ensure compliance
• litigation insurance to cover our legal costs, court fees and compensation awarded by Employment Tribunals

The insurance policy is backed by a leading specialist insurance company and provides indemnity in the unlikely event that litigation or a Tribunal became necessary.

Social Networking & the Employment Relationship

The phenomenon of social networking has raised a number of significant issues for many employers. The increasing use of “smart phones” means access to it at work is not confined just to employees with computer access at work. It can impact on the employment relationship in a number of ways: -
• Employees using work time for social networking
• The risks of employees revealing confidential information or posting comments which undermine the employer’s reputation
• The risk of employees using social networking to isolate, harass or bully other employees
• The exposure of the employer to legal liability due to employee’s social networking posts
• The discovery and detection of misconduct through social networking
• The use of social networking to recruit new employees

Monitoring Employees use of social media at work
If an employee’s use of social media is confined to their own private phone or computer then this is unlikely to be relevant, but where employees use employer’s equipment and employer may wish to monitor what is being said.

Employees however, have a right to privacy and the Regulation of Investigatory Powers Act 2000 makes it unlawful for an employer to intentionally intercept communications without lawful authority.

It is a defence to such an allegation if the employee consents to this.

The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 provide that employer have the right to carry out monitoring if required for a number of purposes including preventing the unauthorised use of the system. However, employers must take reasonable steps to inform the employees that their communications might be intercepted. This can be done through adopting and circulating a policy.

Misconduct through the use of social media
Misconduct may be committed through the use of social media or discovered through viewing employee’s posts. An employer should consider what conduct is and is not acceptable and what unacceptable conduct is so serious that it amounts to gross misconduct. The disciplinary procedure may need to be amended to include disciplinary offences connected with the use of social media.

The potential disciplinary offences include:
• Accessing social media in work time where this is prohibited or restricted
• Posts which breach confidentiality
• Posts which breach other employee’s privacy
• Posts which attack the employer’s reputation
• Use of social media to isolate, insult, bully or harass other employees

ACAS provides guidelines on the appropriate way to deal with such misconduct:

Risks of unlawful discrimination
The Equality Act 2010 makes it unlawful to discriminate against or harass employees because of their gender, race, disability, sexual orientation, age, religion or belief.
Where an employee is being excluded from or bullied or harassed by other employees through social networking, the employer may be liable if it is found that such actions took place in the course of employment. This may relate to use of these communications in work time, or work related matters, which in some circumstances may also include work related social activities.

Even where there is no potential discrimination claim, the Protection from Harassment Act 1997 gives a potential Court claim to an employee who is the victim of harassment.

ACAS guidelines on how to prevent such bullying are available at http://www.acas.org.uk/index.aspx?articleid=3379

Taking disciplinary action for conduct outside working time
It may be that such conduct takes place outside of working hours, but if this comes to an employer’s attention, it may still be legitimate for an employer to make use of the disciplinary procedure.
Whilst normally an employee’s conduct outside of work should not be the concern of the employer, it might become so if it adversely affects working relationships or the reputation of the employer.
If an employer discovers bullying by one employee of another outside of work, the risk is that it is also occurring in work. If this is the case, where one employee complains of unlawful harassment by another, a claim of unlawful discrimination could be made against the employer on the basis that the employer is “vicariously liable.”

Steps which minimise the risk to employers
An employer may be able to avoid liability for an employee’s discriminatory conduct at work if they can show they took all reasonably practicable steps to prevent the discrimination taking place. Adopting relevant policies (which might include a “Diversity policy,” “Bullying and Harassment policy” and a “Social media policy”) specifically bringing employee’s attention to these and training managers in their implementation would go a long way to show an employer took all reasonable steps to prevent discrimination taking place.

Can an employer legitimately use evidence obtained through social media?
In many circumstances there will be no issue of breach of privacy. The information may come from another employee and the employer can then legitimately justify further investigation.

An employee is likely to impliedly consent to this if they have accepted you as a “friend” on Facebook, or if they make the content of their posts freely available.
It would however, be advisable to spell out the extent to which the employer can access social media in a social media policy to make it clear to the employee that the employer may monitor their social media posts. This will narrow the scope for an employee to complain of breach of privacy.

Recruitment and Job Search through Social Media
Both employees and employers need to take care when using social media the purpose of find jobs or staff.

The recent Employment Tribunal of John Flexman, who claimed constructive dismissal after his employer found out that he had uploaded his CV and ticked the box for “career opportunities” on his Linked In profile raised an interesting issue. Mr Flexman insists that he was forced to resign because of it but his employer BG maintains that he posted derogatory comments about the company. The matter has been adjourned until May and we await the outcome with interest.

Employers can access Facebook or Linked in profiles prior to recruiting employees. The difficulty with this is that it may enable employers to see personal information which job candidate may not normally wish to reveal to an employer. If this indicates that the employee has a “protected characteristic”, this may open the employer to an allegation of unlawful discrimination by a disgruntled unsuccessful candidate if they find that their online profiles have been accessed.

Employers should consider carefully therefore whether the risk of checking job applicants through social media outweighs any perceived benefit of finding more out about them.

The importance of a policy
The benefits of a “Social Media Policy” for employer are that:-

• They can provide guidelines into the acceptable and unacceptable conduct, which makes rules clear to employees
• It will help protect the employer from liability if employees misuse social media at the expense of another employee.
• It can make it clear that social media may be monitored, thereby reducing the risk of a complaint of breach of privacy
• It can be a tool in protecting the employer from employees establishing and maintaining private contact with their customers

ACAS guidelines on how to develop a policy are available at

http://www.acas.org.uk/index.aspx?articleid=3381

More information
For a more in depth examination of the issues raised in this newsletter there is a research paper published by ACAS entitled, “Workplaces and Social Networking: The implications for Employment Relations” available at http://www.acas.org.uk/media/pdf/d/6/1111_Workplaces_and_Social_Networking.pdf

Download pdf

There will be a new flat rate for maternity and paternity pay from 1st April 2012 of £135.45 per week for employees earning over £107.

Statutory sick pay is also to be increased to £85.85 per week (effective 6th April)