In confidence…… Promise you won’t tell anyone!

Technology has dramatically changed the way we work in recent years; no more so than in the use of mobile devices. Where would we be without our mobile phones and tablets! They have become such an integral part of everyday life, with employees habitually working on the daily commute. Some see this as just an extension of the working day; others see it as a real benefit to enable them to make more efficient use of travel time.

Whatever your opinion….. there are risks for those of us who work on the move!

Inherent in all this there is a danger that we almost forget where we are and what we are saying. Or is that just me?? The railway carriage is just an extension of the office after all. As an employment specialist I guess I am more tuned in to this type of conversation perhaps, but it is not unusual for me to hear fairly sensitive information being discussed in an open train compartment. I have been sitting adjacent to individuals as quite open comments were being made about someone’s poor performance or discussion took place about a recruitment decision – often over a mobile phone. Most often it is just an innocent whinge about the boss!

On some occasions those involved are wearing company clothing or have a prominent ID badge, so it is not hard to identify the Employer. Therein lies a problem.

A real case. A forensic scientist working with mental health patients at BroadmoorHospital has been suspended from work on grounds of possible gross misconduct. The alleged offences stem from breaching patient confidentiality. A member of the public complained to the NHS Trust that the Consultant had discussed her work in such a way that her place of work, as well as individual patients could be identified. All of this occurred whilst travelling on a train.

Further investigation by the Trust has identified that the Consultant would also dictate notes to secretarial staff whilst on the train; again these dictated reports contained sensitive patient information. This could result in dismissal, although a final decision has not yet been made.

There is a real danger that we become complacent about making and taking calls, and using other mobile devices such as digital recorders, when we are in public places. It is important to remind staff about these issues and, for some Employers, to take their duties under the Data Protection Act more seriously.

In recent years the Information Commissioner has grown bigger teeth. Employers can now be hit by substantial fines, up to £500,000 in fact. A Local Authority has recently been fined £80,000 over the loss of a memory stick which contained sensitive information about special needs school children. The information on the device was not protected or encrypted.

They say “Walls have ears”; but clearly fellow passengers on public transport have them too!!

Need some more advice?

To find out how Employment Law Training Limited can help, get in touch:

Derek Eccleston MA FCIPD
01789 470700
derek@eltraining.co.uk
www.eltraining.co.uk

The Affect the Weather can have on Disrupting your Business

Worst Storm Surge Hits Britain for 60 years !

The snow in the spring and the recent storms bring into sharp focus the affect the weather can have on disrupting your business.

What things should you consider in relation to your employees?

Here are some key points to remember

Employees are not automatically entitled to pay if unable to get to work because of bad weather
There is no legal right for staff to be paid by an employer for travel delays (unless the travel itself is constituted as working time or in some situations where the employer provides the transport). However, employers may have contractual, collective or custom and practice arrangements in place for this.

Discretionary payment for travel disruption might also be of use. Some organisations offer discretionary payments for travel disruption or have their own informal arrangements for this purpose. Such arrangements are normally contained in staff contracts or handbooks or through collective agreements.

Be flexible where possible
A more flexible approach to matters such as working hours and location may be effective if possible. The handling of bad weather and travel disruption can be an opportunity for an employer to enhance staff morale and productivity by the way it is handled – for example is there opportunity to work from home. Think about other issues such as alternative working patterns or who can cover at short notice.

Use information technology
Information technology could be useful in enabling a business to run effectively if many employees are absent from work, for example using laptops or smartphones.

Deal with issues fairly
Even if businesses are damaged by the effects of absent workers they should still ensure that any measures they take are carried out according to proper and fair procedure. This will help maintain good, fair and consistent employment relations and help prevent complaints to employment tribunals. Inform employees in advance of the approach that will be taken in bad weather strikes so there are no surprises.

Plan ahead
Consider reviewing your policy and thinking about how you handle future scenarios. It would be best to put an “adverse weather” or ‘journey into work’ policy into place that deals with the steps employees are required to take to try to get into work on time and how the business will continue if they cannot.

You need to decide how to deal with lateness and what will happen with regard to pay. Having such a policy should mean, there is much less scope for confusion and disagreement.

Need some more advice?

To find out how Employment Law Training Limited can help, get in touch:

Derek Eccleston MA FCIPD
01789 470700
derek@eltraining.co.uk
www.eltraining.co.uk

Is an Employer responsible for incidents outside work and the workplace?

Employees fight after a Christmas Party.

You may think that employees are off-duty come the Christmas Party, but your New Year hangover could be dealing with the aftermath of arguments and worse still, claims of discrimination or harassment.

A Tribunal looked into the case of an employee punching another employee after last year’s Christmas Party, here are some details and 9 points to help you avoid potential problems.

Read on…

Following their Christmas Party, Mr Gimson was walking home with a group of colleagues when he had a disagreement with one and punched another in the face without any provocation, causing serious injury.

The employer followed their disciplinary procedure (correctly – important!), which resulted in Mr Gimson being dismissed on the grounds of gross misconduct. Mr Gimson appealed the dismissal; however the original decision to dismiss was upheld.

Mr Gimson claimed unfair dismissal. He argued that the incident was not misconduct because it happened outside work and therefore outside the employment relationship, and that he received an inconsistent sanction because the other colleagues involved in the incident were not dismissed.

The Tribunal applied guidance from case law to determine the outcome and found:

• that the employer, following a reasonable investigation, had a genuine belief that Mr Gimson assaulted a member of staff after a work event.

They disagreed with Mr Gimson that the incident was not in the course of employment. They agreed that the events after the work Christmas party were sufficiently closely connected to work to have had an impact on the working situation. It was as a result of the work Christmas party that Mr Gimson and some of his colleagues were walking home together.

• The Tribunal decided that the action the Company had taken was fair and reasonable in the circumstances, given that there was no evidence of provocation, neither of the other employees had hit anyone and both were apologetic over the incident. Mr Gimson on the other hand showed no remorse over the incident and attempted to deflect blame on the other parties involved.

It is important for employers to remember that they are vicariously responsible for the actions of their employees if those actions are deemed to have been committed ‘in the course of employment’. This will depend on whether or not there is a clear link between the employment relationship and the off-duty conduct.

One way to look at it is through the “but for” test. “But for” work, would this incident have occurred? It clearly extends “work” into social situations.

Enjoy yourself…but!!!!

A Christmas Party is one way for employers to thank their employees for working hard all year. However, whilst no employer wants to spoil the fun, it is important to remember that managers must remain responsible and ensure their staff do not take the festive spirit too far.

To help avoid potential problems, think about some of the following;

1. Remember that this is a company event, just like any other and you are responsible for every aspect of it, and even perhaps vicariously responsible for the actions of those attending. Consider a limit on “free alcohol” provided by the Employer; perhaps the first drink or wine on the table with the meal.

2. Remind staff beforehand about your Disciplinary Policy and the standards of behaviour that are expected to be maintained at any company events.

3. Circulate your Alcohol and Drug Policy, which should cover matters such as drinking/possessing alcohol at work, and the rules on alcohol or drugs in the workplace. Remind those in safety critical and driving roles that they need to report fit for work the next day!

4. Consider circulating other policies (Bribery?) which cover corporate gifts and entertaining as well as expense claims, (especially if they are MP’s!)

5. Ensure that there are non-alcoholic options available for drivers, non-drinkers and also to cover those who don’t drink for religious or health related reasons.

6. Consider the suitability of any entertainment provided – what can appear ‘funny’ in a party environment could prove to be embarrassing in the New Year, or even offensive to some.

7. Ensure food served is suitable for all those attending and covers vegetarians, food allergies and religious considerations.

8. Consider whether any of the management team need to refrain from drinking alcohol to ‘keep an eye’ on things, and can deal with any issues with a “clear head”.

9. Remind managers that they must uphold company standards.

Merry Christmas Everyone!

Need an employment contract or policy? Go to www.employmentlawtemplates.co.uk

To find out how Employment Law Training Limited can help, get in touch:

Derek Eccleston MA FCIPD
01789 470700
derek@eltraining.co.uk
http://www.eltraining.co.uk

What can we glean from the latest Employment Tribunal News?

Every year statistics are published on the number and nature of Employment Tribunal claims which have been raised. These latest Tribunal Statistics recently produced by the Ministry of Justice show a continuing upward trend. However the introduction of Tribunal claim fees in July this year is expected see a marked reduction in the overall numbers of claims made in the coming months – let’s wait and see!

Top Headlines

• Total complaints made were up by 3% and reached nearly 333,000 over the year to April 2013

• Unfair Dismissal claims rose in last 12 months up to 50,000

• Claims for not consulting a trade union rose by 39%

• Working Time Regulations accounted for 30%

• The highest amount of compensation awarded was
o £387,000 in a Disability Case
o £300,000 in a Sex Discrimination Case

The number of unfair dismissal claims rose in the 12 months ending April 2013. They went up to nearly 50,000, from just over 46,000 in 2012. Unfair dismissal claims accounted for 15% of total claims made.

This is a surprise! One reason for this being a surprise, is that 12 months ago, the length of service required to claim unfair dismissal was doubled from 12 months to two years. Many felt that this would see a reduction in the numbers of Unfair Dismissal claims; clearly this is not the case.

Total complaints made were up by 3% and reached nearly 333,000 over the year to April 2013 – but these complaints were made by lower number of claimants – 191,500.

This continues the trend over recent years that people put more than one complaint in their claim; typically adding some form of discrimination complaint on top of unfair dismissal or redundancy.

The number of employment tribunal claims for failure to inform and consult (with a trade union normally) during redundancies rose by 39% from 7,984 to 11,075 and has now risen by a staggering 146% since 2007/8.

This is probably a reflection of the tough economic times employers have been faced with in recent years. These claims are normally made by trade unions and Employers do need to be aware of their legal obligations in these situations.

Recent case law has also created uncertainty over when an Employer has to consult with the trade union, so best advice at the moment is to err on the side of caution and involve the trade union, or elected representatives, whenever changes in the numbers of the workforce are being considered.

Employment Tribunal claims under the Working Time Regulations accounted for 30% of the total number of claims and rose from 94,697 claims in 2011/12 to 99,627 in 2012/13. The total number of Working Time Regulations claims has risen by 79% since 2007/8, with many of these relating to Holiday pay disputes.

The statistics show that employment tribunal claims for disability discrimination, equal pay, race discrimination, age discrimination and detrimental treatment / unfair dismissal connected with pregnancy all fell. However, employment tribunal claims relating to the Part Time Workers Regulations and ET claims for discrimination on grounds of religion or belief and on grounds of sexual orientation rose – although the numbers involved in the latter were only around the 600 mark.

The highest amount of compensation awarded was some £387,000 in a Disability Case, followed by another award of well over £300,000 in a Sex Discrimination payout. Much of this will be for future losses of earnings and not damages to feelings – which are modest in comparison.

These awards are however a reminder that compensation for Discrimination complaints are uncapped, so Managers and Line Managers need to be well aware of these at an early stage to minimise the risk to the business both financially and through damage to reputation.

In order to minimise the risk of an employment tribunal claim being brought it is advisable to have clear policies and procedures in place, take steps to implement them, for example through management and supervisory staff training, and to take specific employment law advice before dismissing an employee, announcing redundancies or taking disciplinary action short of dismissal.

To find out how Employment Law Training Limited can help, get in touch:

Derek Eccleston MA FCIPD
01789 470700
derek@eltraining.co.uk
www.eltraining.co.uk

Zero Hours Contracts – why all the fuss??

Casual and Zero hours contracts have been with us for many years within Employment Law, and are perfectly legitimate arrangements (at least on paper!); so why are they such a high profile issue of late?

The Labour Party saw enough evidence to call a “summit” meeting to discuss the topic and one MP even suggested recently that Labour would ban their use, which is a radical and unnecessary step. Despite all the hype by political parties, many workers appear to be relatively happy to have a casual relationship with an employer; working when it suits their requirements, and rejecting assignments when it is not. On the flip side, evidence suggests that some Employers have been misusing these arrangements.

How common are Zero hours contracts?

There is conflicting evidence of their use in modern workplaces. The Office for National Statistics put the number around 250,000; whilst the Chartered Institute of Personnel Management, CIPD, suggested that around 1 million workers was a truer reflection (based on a labour market survey in 2013). Because of this, further research is being undertaken to obtain more accurate information on the numbers of workers affected.

No-one is forced to accept one of these contracts; but in a recession with jobs hard to find, some workers no doubt feel they have little option other than a zero hours contract.

In the CIPD survey, just 14% of staff reported that their employer often fails to provide them with sufficient hours each week which is probably where the politicians are focused; but this suggests that 86% are broadly ok with the arrangement.

Misusing these arrangements

Sports Direct is facing a tribunal claim over this very issue. Lawyers representing an ex-employee are alleging that 20,000 of the firms 23,000 workers are on zero hours contracts and were denied employment rights as a result, including a bonus share scheme – offered only to “employees”. If the figures are accurate, this does appear to be a very high percentage of the staff on such contracts, and the case may probe why so many staff were engaged on such contracts. The outcome will be of considerable interest to employers and workers alike.

So what actually is a Zero Hours contract?

Employment relationships differ in all sorts of ways, and this has a marked effect on the employment “rights” of the person. Essentially it is an ‘on call’ arrangement between Employer and Employee. Zero hours contracts are used to cope with varying staff requirements, where the Employer is under no obligation to offer an Employee work but, when it does, the Employee is required to accept the offer. Because there is no obligation on the Employer to provide work, there may be gaps between work “assignments”, which means that the worker never has enough continuous service to obtain many employment rights.

The term “zero” hours is a little misleading as (again referring to the CIPD report) the average hours worked each week on this type of contract is nearly 20. The “problem” with this type of arrangement is that the worker cannot budget easily as income fluctuates and could even be nothing, hence the title of the contract. The industries with the highest proportion of employers using zero hours contracts were hotels, catering and leisure (48%), education (35%) and healthcare (27%). The workers were generally in low skilled roles and on low incomes.

A different kind of employment relationship is a Casual Agreement. A Casual Worker Agreement is often used when employers have variable demands for staff; such as a care home with varying degrees of room occupancy for example. Under a casual work arrangement, the Employer has no obligation to offer work to an individual and (importantly different from the Zero Hours arrangement) the individual is not required to accept the work when it is offered.

Casual workers are also not considered to be employees working under a contract of employment because there is no mutuality of obligation and, under this arrangement, there is again no continuing employment relationship between assignments.

As a zero hours or casual worker is not classed legally as an employee, they are usually not entitled to receive rights relating to things like grievance, disciplinary, maternity and paternity, sick pay and other employment benefits.

In summary, the contracts themselves are perfectly legitimate and there is no reason to ban their use. However, research and possibly even case law, may indicate that they are open to abuse, particularly in a period of recession when the employer is in a strong position to “force” workers to accept these arrangements and then puts pressure on them to work whatever hours suits the business. If this is the case we can expect legislation to bring a fairer balance into the relationship.

What to find out more about different types of contracts? We offer a wide variety of Employment Law training courses and even have an excellent Full Day Course available on Contracts of Employment. Why not get in touch below for more information?