Social media and the workplace: don't get caught in the web!

Two recent employment tribunal decisions highlight the importance and usefulness of a business having a properly drafted policy on the use of social media by their employees.

In Preece v JD Wetherspoons plc ET2104806/10, the tribunal found that a pub manager was fairly dismissed for gross misconduct after she made inappropriate comments on Facebook about two of her customers, who had verbally abused and threatened her. The manager was found to be in breach of the employer's e-mail and internet policy, which specifically referred to employees' use of social media (including Facebook) while at work.  

In Gosden v Lifeline Project Ltd ET/2802731/2009, the tribunal held that an employee was dismissed fairly for sending an offensive e-mail from his home computer to his colleague's home computer. No privacy attached to the e-mail as it was a chain e-mail asking recipients to pass it on. The employer was entitled to treat his actions as gross misconduct justifying the dismissal.

With the ever increasing use and awareness of social media it is important for businesses to adopt a social media policy clearly setting out the standards expected of employees when using such sites, whether for personal or business reasons. Our employment team have now prepared a style social media policy which will assist employers in monitoring and responding to the use employees make of social media which will help to ensure that there are no implications for, or risks created to, an organisation’s business interests.

If you would like any further information on this matter, or are interested in obtaining our social media policy, please contact Stephen Connolly on 0141 227 6090.

Employment law seminar- an invitation!

As highlighted in a previous blog, on 6th April 2011 the government introduced legislation which saw the abolition of the default retirement age and the related stautory retirement procedure. This means that employers can no longer automatically or lawfully retire employees simply on the basis that they have reached 65 years of age.

On Friday 20th May, we will be hosting a seminar to discuss the full implications of these changes for employers when dealing with the retirement of employees and succession planning in the workplace. The seminar will focus on:

• The specific changes which have been made to the law;
• Practical steps that employers can take to address the problem of terminating the employment relationship on the basis of retirement; and
• What the employment tribunals and courts will require an employer to show where it seeks to objectively justify a retirement dismissal.

The details for this free seminar are:

Date:                            20^th May 2011

Venue:                          Miller Samuel Offices (RWF House, 5 Renfield Street, Glasgow)

Registration & Buffet: 12.30  p.m. until 1 p.m.

Talk:                              1 p.m.

Tea & Coffee:              1.45  p.m. until 2.15 p.m.

If you are interested in coming along, please email linda@millersamuel.co.uk to reserve your place!

Miller Samuel attend APIL 2011

Our Caroline Coyle, Diane Cairney, John Cowan and Kirsty Yuill attended the Annual APIL (Association of Personal Injury Lawyers ) conference at Celtic Manor on 14^th and 15^th April 2011. The Association of Personal Injury Lawyers (APIL) exists to help its members fight for the rights of injured people. The Conference was highly informative regarding developments in the personal injury field including accidents abroad, recent damages awards in Scotland and England and maximising awards in catastrophic injury cases.

Our specialist personal injury team are happy to advise and assist with pursuing a successful claim for compensation. 

AWR- What are they good for...?

The Agency Workers Directive will be implemented in the UK on 1 October 2011 through the Agency Workers Regulations 2010 (“AWR”).

The AWR were brought in to provide temporary agency workers with equal treatment in terms of basic working and employment conditions. The AWR aim to put agency workers on an equal footing with those employed directly to do the same job by the hirer.

What do basic working and employment conditions relate to?

The term “basic working and employment conditions” refer to contractual terms relating to:

• Pay
• Duration of working time
• Night work
• Rest periods and rest breaks
• Annual leave

What does “pay” include?

“Pay” means any sums payable to a worker of the hirer in connection with the worker’s employment, including any fee, bonus, commission, holiday pay or any other earnings referable to the employment.

Workers may also be entitled to certain other non-pecuniary benefits which the employer may provide its employees with.

Qualifying period

Agency workers will only be entitled to equal treatment when they have been in the same role with the same hirer for 12 weeks.

What if the agency worker is not being afforded equal treatment?

If agency worker are not being afforded equal treatment then their remedy lies in a claim at the employment tribunal. The tribunal can decide what rights should be afforded to the agency worker and make an award of unlimited compensation to the agency worker. The award will however be restricted to the loss arising from the breach.

Practical effects

For employers, this change could have considerable impact in terms of additional cost. The increased wage bill could be significant for organisations that rely on the services of agency staff.  Employers may find that the practical and administrative effects of the AWR are unduly burdensome and may seek to reduce their reliance on agency staff.

What can we do?

Employers should seek advice on their duties and responsibilities under the AWR prior to recruitment.

For further advice, contact Stephen Connolly on 0141 227 6090.

Offshore Wind Future Development Event

Our John Cowan and Liana Di Ciacca attended the Offshore Wind Future Development event organised by The City of Edinburgh Council in partnership with Scottish Enterprise on 13^th January 2011. It was a hugely informative event highlighting the imminent growth in the offshore wind industry. We would be happy to help advise any business involved in the industry, either directly or through logistics or other support services.

Looking to Move Office in 2011?

Miller Samuel are excited to announce they are recommended property solicitors for Help Moving Office.

Help Moving Office provides businesses with the information, guides and contacts needed for a successful office move. Help Moving Office guides you through the office relocation process and gives you the information you need to make the right decisions at the right time. Check out their website at http://www.helpmovingoffice.co.uk/ for useful relocation advice and contacts.

The 'Retirement' of the Default Retirement Age?

The Employment Equality (Age) Regulations were introduced in 2006. One of the most significant changes introduced by the regulations was that of a Default Retirement Age ("DRA") which made it possible for an employer to fairly dismiss an employee on the ground of retirement once they reached the age of 65. So long as the employer complied with the statutory procedure, any dismissal on the ground of retirement would be fair.

This law has been under constant scrutiny since its introduction, even leading to Age Concern raising a legal action against the UK Government which was pursued all the way to the European Court of Justice. Whilst the (then Labour) Government successfully resisted this action, they did give an indication that the DRA would be reviewed in 2011. This is a nettle which has been firmly grasped by the new coalition Government who have now announced plans to phase out the DRA by 1 October 2011.

At the beginning of the month the Government launched a consultation following its proposal that the DRA be abolished. The specific details of the Government's intentions are:

• Employers will be able to rely on the DRA and the related statutory retirement procedure where any retirement takes effect before 1 October 2011. If retirement is due to take place after this date the DRA will not apply and the employer will need to "objectively justify" (see below) the retirement.
• The last date on which employers will be able to give notice of retirement to an employee under the current statutory procedure will be 6 April 2011. After this date employers will be unable to provide an employee with the minimum period of notice required to allow the retirement to take effect before 1 October 2011.

The consultation seeks views on whether the proposed timetable for the removal of the DRA strikes the right balance of allowing the Government to achieve its policy aim and the needs of employers to have time to adapt to the changes. Further details of how to respond to the consultation can be found here.

Practical Effects:

It is almost inevitable that the DRA will be removed. This will create potential problems for employers in attempting to manage succession planning in the workplace. Rather than being able to rely on the DRA employers will, in all likelihood, have to consider each position and each employee on a case by case basis when contemplating retirement. If the Government's intentions are carried through this will require employers to "objectively justify" any decision to retire an employee. This means employers will have to establish that a decision was a proportionate means of achieving a legitimate aim and produce evidence to support such a conclusion. The consequences of failing to properly carry out this exercise could be expensive and leave a business open to the risk of being on the wrong side of both unfair dismissal and age discrimination claims.

It is to be hoped that further guidance will be produced by the Government in the fullness of time. Employers of a notably aged workforce may, however, wish to take advantage of the favourable statutory procedure currently in place while they still have the opportunity to do so and avoid some potentially difficult decisions from April next year.

If you are concerned about the impact this change may have on your business or for more information on the DRA generally please contact Stephen Connolly.