Employment Law

The increase in the use of social media as a means of communication has created a range of issues for employers. Andrew Egan, an employment law specialist with Wantage law firm Charles Lucas & Marshall says that employers need to be careful as to how and why they use them.

With social networking sites now a bigger part of everyday life for personal and professional use, more employers appear to be accessing people’s profiles to scrutinise potential employees as part of their recruitment process, as well as use social media for disciplinary purposes.

Such checks are often informal, rather than as a result of any HR or organisational policy. However, the results of such unofficial enquiries can be significant.

Employers may be concerned about drinking or drug use, provocative or inappropriate photographs or information, negative comments about a previous employer, inaccurate information about education or qualifications, the use of discriminatory comments, online profiles linking candidates to extreme political views or to images of sexually explicit or illegal activity.

Employees’ social media activities are forcing employers to consider what rules apply when disciplining in such circumstances.  Employers are frequently finding themselves in unfamiliar territory and sometimes getting it wrong.

We recently had the example of an employer who had an employee on long term sick leave and after making enquiries on-line as a result of certain suspicions concerning the employee’s state of health, in fact discovered that the employee was in Portugal, competing in a salsa dancing competition!

In most cases employers will have rules regarding what conduct is and is not permitted.  If the rules are clear and reasonable and clearly communicated to employees, then disciplinary action taken for their breach is likely to be fair, if a fair procedure is followed.  This applies whether the conduct which breaches the rule is at work or off duty.  Employees do have the right to respect for their private life, but they also owe a duty of faithfulness to their employer, which applies online and offline, at work and off duty.

As well as being in breach of disciplinary rules, disciplinary action for online activities can also be justified on the grounds that it brings the employer into disrepute.  But this can be tricky ground for an employer, eg a supermarket employee posted a video on YouTube showing two colleagues hitting each other with plastic bags. The employer tried to argue that the employee’s activities brought the employer into disrepute but the court held that their dismissals were unfair.

The practice of using online research for hiring decisions or taking disciplinary action against an employee could lead employers into a legal quagmire and ideally should be firmly resisted. One way may be to introduce web checks into the recruitment process and warn job candidates of the employer’s intention.

If a job offer has been made, accepted and subsequently withdrawn after online vetting, there is the potential for a candidate to claim damages and compensation, even if they cannot actually claim unfair dismissal.

Companies checking on candidates via social networks leave themselves open to claims of discrimination, as they are likely to obtain information ranging from sexual orientation and ethnicity to religion, age and political views, making it easier for rejected candidates to claim that they have been discriminated against.

It is very tempting for employers to use Facebook and other sites to further screen candidates in the recruitment process, but if an employer’s existing procedures are strong enough, they really shouldn’t need to run the risks of looking too much into purely social sites.

Acas has published a guide for employers on the use of social media in the workplace by employees which advises employers to introduce a policy on social networking, to treat “electronic behaviour” in the same way as “non-electronic behaviour” and to react reasonably to social networking issues by thinking about the likely impact on their business.

Employers need to understand how employees’ use of social media can affect their business and need to take steps to minimise the potential risk to their business by adopting clear policies and procedures on employees’ social media use.

For further advice or information on this subject, contact Andrew Egan on 01235 771234 or on
FREEFONE 0800 180 4835 or andrew.egan@clmlaw.co.uk

Age Awareness

Employers need to sharpen up their attitude towards older workers – as new figures show a big leap in the number of age discrimination cases.

Andrew Egan, an employment lawyer with Newbury law firm, Charles Lucas & Marshall, says the employment tribunal statistics for 2010-11 highlight the need for companies to become more age aware.

The figures show that the number of age discrimination claims increased considerably, rising 32%.

“There are all sorts of pitfalls for employers,” says Andrew Egan. “The default retirement age has ended and with rising levels of redundancy and unemployment, people are more likely to consider whether they have been discriminated against.”

While the average award handed out by Employment Tribunals was £12,697, the average award for age discrimination cases was far higher than any other type of discrimination -  £30,289 – triple last year’s average. The highest award was £144,100.

“There still seems to be a perception of older workers being incapable and lingering on and being a general burden at work,” says Andrew Egan.  “Employers must have appropriate policies in place to deal with issues like redundancies, recruitment and pay – and age should not play a part.

“Managers and supervisors need training in dealing with potential discriminatory matters and business owners should ensure people are able to put that training into practice,” he added.

You can contact Andrew Egan on 01635 521212 or andrew.egan@clmlaw.co.uk

New Agency Workers Regulations are coming soon. Andrew Egan, an employment specialist with Wantage law firm, Charles Lucas & Marshall says employers using agency staff need to assess their present arrangements and prepare for implementation in October.

Agency Workers Directive Seminar - 13th July 2011 - 9:30 - 11:30 a.m.

Agency workers already make up about 4% of the workforce in the UK. The new regulations are based on equalisation of pay and rights between agency workers and permanent workers. They aim to ensure that agency workers receive the right to the same basic working and employment conditions as those in the equivalent permanent job recruited directly by the end  user.

The regulations will apply to most workers who are provided by an agency to a hiring company. Even individuals provided through a personal services company, as individual contractors, may be caught by the regulations unless the hirer can persuade an employment tribunal that those contractors are genuinely self-employed.

Some rights will apply from the first day of employment, such as access to facilities such as childcare, canteens, transport and job vacancies. Other rights, such as pay and some benefits, will apply after the agency worker has been in the same job for 12 weeks, whether full time or part time.

Basic pay and terms will include pay rates, working time, night work, rest periods and breaks and contractual annual leave, overtime, luncheon vouchers and shift allowances. Pa’ will includes fees and some bonuses for individual performance.

The right to equal treatment will not, however, apply to occupational pension schemes, occupational sick pay, share schemes, contractual notice, contractual redundancy pay, contractual maternity or paternity rights, or to bonuses which relate to the hirer’s corporate performance, designed to reward loyalty or long-term service and which are not directly attributable to the amount or quality of the work performed.

The 12 week continuity will be broken if an agency worker starts a new assignment with a different client, has at least a minimum six-week break with the same client (either during or between assignments) or starts a new role with the same client which is substantially different from the previous role.

The hiring company will be solely responsible for any breaches which relate to the ‘day-one’ rights. The agency is responsible for setting the agency worker’s terms and conditions and will be liable for any breach of equal treatment rights.  The hiring company will need to identify what an equivalent permanent employee would be paid, and then pass that information to the agency, which will then set the level of the worker’s pay. The increased costs of equal treatment will probably have to be absorbed by the hiring company.

The impact of the regulations will vary across industries. Job sectors such as construction, education and healthcare likely to face some of the biggest challenges.

All users of agency workers should now be assessing their staff resources. However, there are measures an employer can take to mitigate or avoid the impact of the regulations:

Assess your arrangements with your agency – in what areas of the business  are the agency staff? How many are there? What roles are they carrying out? What are their duties and terms? How long are the agency assignments for?

Consider whether it is economically viable to hire staff via an agency in order to reduce the risk of workers being found to be employees. Consider whether to employ these workers direct. Consider inserting provisions in the contracts with agency workers to apportion liability that may flow from a breach of the regulations.

Liaise with your agency now to check what they are proposing to do. How will this impact on the agency’s rates and how will liability be contracted between the agency and your business?

Limit the use of agency workers for assignments of fewer than 12 weeks and/or in different roles – although there are anti-avoidance provisions in the regulations which deal with situations where a pattern of assignments emerges designed to deliberately deprive an agency worker of their entitlements. As a deterrent, tribunals will also have the power to make an additional award of £5,000 in respect of such claims. You would also need to look at the cost to the company of possibly having to regularly retrain agency staff to do the job

Certain services could be outsourced that are usually performed by agency workers, although additional risks and costs may arise as a result of the application of the TUPE Regulations.

You can contact Andrew Egan on 01635 521212 or andrew.egan@clmlaw.co.uk

Agency Workers Directive Seminar - 13th July 2011 - 9:30 - 11:30 a.m.

We are holding a free seminar in conjunction with Trak Employment Solutions Ltd in July, on the impact for businesses of the Agency Workers Regulations, coming into force on 1st October 2011.

Agency Workers Directive Seminar 13th July 2011 - Details

If you would like to attend, could you please contact Sarah Lardner by e-mail sarah.lardner@clmlaw.co.uk or by phone on 01635 521212 by Wednesday 6th July.

If you employ agency staff, temporary workers or contractors, this will be of interest to you.

Kind regards,

Don’t Let Restrictive Covenants Stifle Your Business Start-Up

For further information, please call 01635 521212 or andrew.egan@clmlaw.co.uk

The Department for Business, Innovation & Skills has now confirmed that the default retirement age will be abolished from 1st October 2011. The measure will be phased in between April and October to give employers time to adjust.

Under the new rules, workers will still be allowed to retire at 65 if they want to but the changes raise the prospect of staff staying on into their seventies or eighties.

From 1 October 2011, employees who are compulsorily retired will be able to bring claims for age discrimination and unfair dismissal. Any decision to retire an employee must be objectively justified in order to avoid age discrimination.

Currently, employers are allowed to impose a ‘normal’ default retirement age and, provided that they follow the proper procedures, can terminate employment at or after this age by reason of retirement. The default retirement age cannot be the basis of unfair dismissal or discrimination claims by the employee.

The 1st April 2011 is the last date on which notices can be given under the current statutory procedure. Any employer who receives a request to continue working under the current procedure must consider the request in good faith.
Using a default age will be prohibited after October 2011, unless an employer can justify doing so as a “proportionate means of achieving a legitimate aim.”

The Government sees the move as a way of tackling age discrimination and reinforcing the value older employees can bring to the workplace. The dismissal of older workers should be managed either by discussion or by formal performance management procedures. The Government believes that retaining a skilled workforce who may be unlikely to decrease in efficiency and productivity at or after 65, benefits society, the economy and the employer. It is argued that removing the ability to compulsorily retire at 65 will boost the economy and end “discrimination” against older workers.

Lawyers and business leaders have criticised the move to prevent employers forcing staff to retire at 65. Business leaders are concerned it will reduce the flexibility for employers to remove under-performing staff and simply provide more work for employment lawyers. They also argue that scrapping the default retirement age could lead to less incentives or opportunities to hire and train younger workers or take on apprentices. 
The question of whether retirement is objectively justified will depend to a large extent on the specific business. Employment Tribunals may be prepared to uphold justifications based on the needs of the business in the context of the labour market which may be necessary and appropriate in the circumstances, but the bar is likely to be high, and the evidence will be closely examined by Tribunals.

Employers looking to deal with employees of a current compulsory retirement age are strongly recommended to take legal advice quickly.

Andrew Egan, an employment specialist with Swindon law firm, Charles Lucas & Marshall, explains the impact for employers of the Government’s plans to abolish the default retirement age.

The Department for Business, Innovation & Skills has now confirmed that the default retirement age will be abolished from 1st October 2011. The measure will be phased in between April and October to give employers time to adjust.

Under the new rules, workers will still be allowed to retire at 65 if they want to but the changes raise the prospect of staff staying on into their seventies or eighties.

From 1 October 2011, employees who are compulsorily retired will be able to bring claims for age discrimination and unfair dismissal. Any decision to retire an employee must be objectively justified in order to avoid age discrimination.

Currently, employers are allowed to impose a ‘normal’ default retirement age and, provided that they follow the proper procedures, can terminate employment at or after this age by reason of retirement. The default retirement age cannot be the basis of unfair dismissal or discrimination claims by the employee.

The 1st April 2011 is the last date on which notices can be given under the current statutory procedure. Any employer who receives a request to continue working under the current procedure must consider the request in good faith.
Using a default age will be prohibited after October 2011, unless an employer can justify doing so as a “proportionate means of achieving a legitimate aim.”

The Government sees the move as a way of tackling age discrimination and reinforcing the value older employees can bring to the workplace. The dismissal of older workers should be managed either by discussion or by formal performance management procedures. The Government believes that retaining a skilled workforce who may be unlikely to decrease in efficiency and productivity at or after 65, benefits society, the economy and the employer. It is argued that removing the ability to compulsorily retire at 65 will boost the economy and end “discrimination” against older workers.

Lawyers and business leaders have criticised the move to prevent employers forcing staff to retire at 65. Business leaders are concerned it will reduce the flexibility for employers to remove under-performing staff and simply provide more work for employment lawyers. They also argue that scrapping the default retirement age could lead to less incentives or opportunities to hire and train younger workers or take on apprentices.

The question of whether retirement is objectively justified will depend to a large extent on the specific business. Employment Tribunals may be prepared to uphold justifications based on the needs of the business in the context of the labour market which may be necessary and appropriate in the circumstances, but the bar is likely to be high, and the evidence will be closely examined by Tribunals.

Employers looking to deal with employees of a current compulsory retirement age are strongly recommended to take legal advice quickly.

For further information, please call 01635 521212 or andrew.egan@clmlaw.co.uk

In today’s difficult economic climate, large numbers of people are either losing or are likely to lose their job.

Andrew Egan

Andrew Egan, an employment specialist with law firm Charles Lucas & Marshall explains the role of compromise agreements when negotiating redundancy terms.

If you are being made redundant, have recently been involved in a dispute with your employer or are possibly parting on amicable terms, then you may be invited to a ‘without prejudice’ meeting to discuss a compromise agreement. You may be asked to sign such an agreement in exchange for a monetary payment over and above payments and other benefits you would normally receive on the termination of your employment.

You may have claims against your employer under either your contract of employment or under statute. In many cases, your employer will want to make a payment to you in return for receiving an effective waiver of you making any such claims, so that you do not take your employer to court or pursue your claims in an Employment Tribunal.

Compromise agreements to settle any claims or potential claims can be drawn up in circumstances where employment may still be continuing but are far more commonly used when employment has terminated or is about to do so.

Any agreement to settle or waive most statutory claims will be void unless it is recorded in a compromise agreement which must comply with certain statutory requirements, set out in section 203(3) of the Employment Rights Act 1996):

• The agreement must be in writing
• The agreement must relate to a ‘particular complaint’ or ‘particular proceedings’
• You, as the employee, must have received legal advice from a relevant independent adviser on the terms and effect of the proposed agreement and its effect on your ability to pursue your employment rights before an employment tribunal
• The independent adviser must have a current contract of insurance, or professional indemnity insurance, covering the risk of a claim against them by you in respect of the advice
• The agreement must identify the adviser
• The agreement must state that the conditions regulating compromise agreements have been satisfied

Where there is a breach of the terms of a compromise agreement, it can be enforced by way of a claim for breach of contract in the civil courts or as a contract claim in an employment tribunal – provided the compromise agreement is made before termination.

The agreement is important as it will cover such things as: payment of your salary and other benefits to termination; payment of the compensatory or ex gratia sum and any tax liabilities and indemnities; confidentiality of its terms; the waiver of the claims you are or may be making; payment of your legal costs for taking independent advice (usually paid by your employer); the return of your employer’s property and restrictive covenants affecting your future ability to work. The basic purpose of a compromise agreement then is to achieve a clean break in the employment relationship.

In essence, the employee agrees not to make any employment related claims against the employer and signs away the right to make claims such as unfair dismissal, breach of contract, unpaid wages, redundancy, unlawful discrimination, etc and cannot later submit a claim to the employment tribunal or a court.

If you think you may have an employment tribunal case and you decide not to enter into an Agreement to compromise that claim, you will need to act quickly, as there is generally a three month time limit for bringing most employment tribunal claims.

There is no legal or other obligation on you to sign a compromise agreement if you are not happy with it. If you choose not to sign the agreement between you and your employer, you are free to make a claim to the employment tribunal. In redundancy cases, however, this could mean that your employer would refuse to pay you the full enhanced package and will instead pay the minimum state entitlement. In non-redundancy cases, what you are putting in jeopardy is the ex-gratia payment being offered. Many compromise agreements are, however, capable of being negotiated upwards.

Your solicitor will consider the terms and conditions of your compromise agreement and provide you with written advice on your agreement. If there are amendments needed, the solicitor will contact your employer and negotiate amendments.

If you have any specific questions you will be able to speak to a solicitor concerning the wording of the agreement, for example in relation to the taxability of the payment or payments to you and whether these have been made in the most tax efficient way.

If the wording is agreed and acceptable in your solicitor’s opinion, then arrangements will be made for the agreement to be signed by you and by your solicitor and then forwarded to your employer for their signature.

For further information, please call 01635 521212 or andrew.egan@clmlaw.co.uk

Employment Tribunal - Legal Costs

Andrew Egan, an employment lawyer with Charles Lucas & Marshall suggests employers weigh up the costs before defending claims in employment tribunals.

I have recently been approached by several employers wanting to defend claims in employment tribunals.
Solicitors fees vary and paying for more experienced legal representation or a larger firm does not necessarily make sense -  nor may it be appropriate if the claim is small and the case not particularly complex.

Employers need to remember that the more preparation a legal firm carries out then the larger the bill.  A commercial and practical decision needs to be taken – it may not mean settling the claim but it may mean do not fight it at any cost. A balance needs to be struck.

Employers will want to consider the message being sent to other staff and will be keen to protect the business and its reputation. An employer may not see any reason for paying anything to an ex-employee whose claims have no merit.

As a tribunal approaches, the expense associated with contesting the claim increases, with witness statements prepared and exchanged and information disclosed.

It is impossible to make sensible decisions about fighting or possibly settling a claim without looking at three crucial factors:

• the chances of success
• the likely remedy
• any wider impact a successful claim would have (in terms of reputation, precedent or employee relations).

Allowances always have to be made for the unexpected. However, it is usually possible to predict the chances of success. When the claim is weak, an employer should be able to keep the legal costs under control and not spend too much money in disputing allegations which are improper or untrue. An employer making a settlement offer in this situation would be in a strong position to offer a smaller sum.

It is important to focus on how much will be awarded if the employee wins. Compensation for unfair dismissal is based on lost earnings and does not include payment for injury to feelings. In discrimination claims there is no cap on compensation and injury to feelings awards are made. The higher paid the employee, the higher the stakes in the tribunal.

Many employers worry about negative publicity if they go to a tribunal although the likelihood of this is sometimes exaggerated. The facts of the case are usually not that newsworthy.

Parties often have unrealistic expectations of what an employment tribunal can actually do. Employees may seek a chance to clear their name or force the employer to recognise the error of their ways. Employers may seek vindication or to send a clear message to other employees that it does not pay to take them to the tribunal. Full vindication for either party, however, is rare.

For further information contact Andrew Egan on 01793 511055 or andrew.egan@clmlaw.co.uk