Employment

Social Media and The Workplace- Damaging the Employer’s Reputation
19 May, 2017

Social media is now a way of life.  It is everywhere you look and will have a presence in most things you do, both within the work environment and as part of your personal and social life.  The average person has approximately five social media accounts and spends roughly one and a half hours browsing on these networks every day.   

Wherever the social media activities of employees impact on the employment relationship- a topic discussed at Cripps’ recent HR Forums- it is not just precious hours that you could be losing to your social media habits. 

Employers are increasingly taking disciplinary action and dismissing employees where their social media activity damages the employer’s reputation, damages relationships with customers or colleagues, or otherwise calls into the question the suitability of the employee to continue in their particular job role.  The recent case of Plant v API Microelectronics Ltd demonstrates just this.

Overview

In 2015 the employer, API Microelectronics, introduced a new social media policy that provided for disciplinary action and the potential sanction of dismissal where an employee’s use of social networks might cause damage to the reputation of the company.  The policy gave a non-exhaustive list of what was considered to be irresponsible posting behaviour.

The employee, Mrs Plant, who had been working as a machinery operative for the company for 17 years, posted a comment on her Facebook page.  Her comment did not mention the name of her employer, but her profile page showed that she was an employee of the company and described her position at the company as a ‘dogsbody’.  Furthermore, her page was linked to the employer’s computer system.  The particular comment, which followed an announcement about the proposed relocation of the company’s factory, included the words “bloody place I need to hurry up and sue them”.

Despite Mrs Plant’s longstanding service to the company and clean disciplinary record she was dismissed on the grounds that her comments were inappropriate and breached the company’s social media policy.  The company considered that she had not provided an adequate enough explanation as to the reason behind her posts and that these posts were clearly aimed at the company.

Outcome

Mrs Plant applied to the employment tribunal on the grounds of unfair and wrongful dismissal, but the judge found in the employer’s favour.  Despite the judge stating that the decision might appear “harsh”, it was deemed that the employer’s reaction fell within the range of reasonable responses in the circumstances.  Mrs Plant was well aware of the employer’s social media policy and the potential consequences if she breached it. The “dogsbody” comment in her profile was derogatory and insulting both to the company and to her work colleagues, and the company was entitled to conclude that the “bloody place” comments were directed at it.

Practical Points to Take Away

For employers, this case shows that it is important to put in place water- tight social media policies that set clear guidelines and parameters for what the employer deems to be inappropriate behaviour.  Often dismissals in similar situations are found to be unfair because the employer did not lay down clear ground-rules and expected standards of behaviour through a clear social media policy.

The judgement noted that comments and posts can be forwarded on by friends and family, and there was a reminder to this effect in the social media policy.  Consequently employees should not solely rely on their social media privacy settings to prevent disciplinary action or dismissal.  Employees should take care to update their social media pages when social media policies are introduced and refrain from posting inappropriate comments across the board.

This decision is hard-line, but fell within the range of reasonable responses open to an employer.  It shows the importance for both employees and employers alike of being aware of the interface between social media and employment relationships in terms of company policies as well as personal behaviours.  Careless talk costs jobs and reputations.


Are your recruitment methods discrimination proof?
12 May, 2017

Overview

Objective approaches used within a company’s recruitment process, for example the use of psychometric testing methods, have come under scrutiny this week in light of the recent ruling in the case of Government Legal Service v Brookes (Brookes). 

As we find ourselves in the midst of Mental Health Awareness Week (MHAW), and with advocates like The Duke and Duchess of Cambridge supporting the need to stamp out the taboo that surrounds mental health, we recommend that employers review their recruitment processes and consider whether they put at a particular disadvantage any applicants who have Asperger’s syndrome or other developmental disabilities.  In some cases recruitment processes may require modification where applicants have a specific learning difficulty such as dyslexia.

The decision in Brookes

The case of Brookes relates to a candidate with Asperger’s Syndrome who applied for a training contract with the Government Legal Service (GLS).  The candidate asked GLS if, due to her Asperger’s, she could submit short written answers as a disability adjustment to the multiple choice Situational Judgement Test (SJT) as part of the recruitment process.  She was refused and she claimed indirect disability discrimination and a failure to make reasonable adjustments, after taking and narrowly failing the SJT.  The tribunal found in the candidate’s favour.

The Employment Appeal Tribunal (EAT) upheld this decision on appeal.  The requirement for all candidates to take and pass the SJT was a ‘provision, criterion or practice’ which put a group of disabled people such as Brookes at a substantial disadvantage compared to candidates who did not have Asperger’s.  While the GLS needed to test the core competency of ability of its candidates to make effective decisions, a psychometric test was not the only way to achieve this and so its defence of objective justification failed.  A relevant factor in the decision was that Brookes’ psychiatrist had made previous recommendations (in relation to her university courses) that a multiple choice format test would not be appropriate for her.

Implications

The use of objective tests that use standard multiple choice setups may need to be adjusted for those candidates who have a disability such as Asperger’s.  Although the medical evidence was inconclusive in this case, the tribunal found in the claimant’s favour regardless, and it is highly recommended that employers err on the side of caution when utilising objective tests in their recruitment processes when there are disabled applicants.  Employers should be prepared and willing to make adjustments to these standard tests if required to do so to prevent discrimination claims from arising.

In the broader context of mental health at work, difficulties and challenges can often be overlooked by employers and colleagues alike, but the importance of identifying any underlying issues is paramount in not only improving the working environment, but also preventing any potential disability discrimination claims that may arise.  It is essential to ensure there are open lines of communication with employees, to provide training for managers on spotting the signs of poor mental health at work, and conducting risk assessments to identify and reduce risks and hazards at work that may act as catalysts to the development of mental health problems among their employees.


Blowing the whistle- a look into the protections afforded to those who decide to speak out
19 April, 2017

The protections afforded to employees who decide to raise complaints of wrongdoing with their employers have been brought to the forefront as Jes Staley, the Chief Executive of Barclays, has come under investigation by the Financial Conduct Authority (FCA) and Prudential Regulation Authority (PRA) after admitting he had broken rules on protecting whistleblowers and used the bank’s internal security team to attempt to identify individuals who had sent anonymous letters complaining about the recruitment of a senior employee.

What is whistleblowing?

This is where a worker or employee discloses information on certain suspected wrongdoings or malpractices in the workplace to their employer (in most cases) or a third party, such as the FCA or the press, for example information which in their reasonable belief tends to show the commission of a criminal offence.  A disclosure of information by a whistleblower usually relates to something that impacts on either the employer or a third party, but may not impact on them personally. 

Overview of current UK legislation protecting whistleblowers

 Under the Public Interest Disclosure Act 1998 (PIDA) a two-tier protection mechanism is in place for whistleblowers:

  1. The dismissal of an employee is automatically unfair if the reason for their dismissal is that they have made a protected disclosure; and
  2. A worker is protected from being subjected to any detriment as a result of making a protected disclosure.

For a whistleblower to qualify for protection they must have made a ‘qualifying disclosure’ in accordance with s43B Employment Rights Act 1996 (ERA) which also must be made in a way which meets the requirements for ‘protection’.  For a qualifying disclosure to be protected the main factor taken into consideration is the identity of the person to whom the disclosure is made i.e. whether they are internal or external to the employer.  Further to this, changes to the ERA in 2013 added a new requirement for those raising whistleblowing allegations to have a ”reasonable belief” that the disclosure is made in the ”public interest”.

A case to watch out for in 2017

Chesterton Global v Nurmohamed

In this case the claimant employee brought a whistleblowing claim alleging that Chestertons were deliberately manipulating the accounts to give him a lower commission income, which also affected around 100 other senior managers.  On appeal, the Employment Appeal Tribunal confirmed a fairly low threshold for the ‘public interest test’ and that it is the worker’s “reasonable belief” that matters.  There was no need to assess whether the disclosure was of real interest to the public, so long as the worker’s belief that the disclosure was made in the public interest was objectively reasonable.  The decision in this case was reiterated in Underwood v Wincanton Plc confirming that the ‘public’ can be interpreted as a subset of the public as opposed to a whole, even if this subset consists only of fellow employees.  That case concerned a written complaint by drivers about their terms and conditions of employment and the allocation of overtime.  The ‘public interest test’ can therefore be satisfied even if a relatively small group of people are directly affected by the subject-matter of the disclosure. 

The case of Chesterton will be reviewed by the Court of Appeal in June 2017 and when this appeal is decided it will be important for developments of the ‘public interest’ requirement of a whistleblowing claim and whether this low threshold will be maintained or reversed.

Is the current protection enough?

In the UK over the past two years the number of whistleblowers who have reported grievances to the FCA has dropped.  The common hypothesis for this decline is that not enough protection is offered by regulatory organisations such as the FCA, nor by employer organisations to those employees who decide to speak out. 

Current whistleblowing legislation puts no positive obligation on employers to encourage whistleblowing or implement a whistleblowing policy, and the protection offered by current UK legislation for whistleblowers has come under scrutiny and criticism over the years.  This criticism has been further compounded by the recent publication of the Law Commission’s report setting out proposals to reform the Official Secrets Act.  This called for a significant increase in prison sentences for those who decide to reveal state secrets, which was met with an outcry from whistleblower charities and civil liberties groups.

The Barclays whistleblower investigation provides a serious test of the whistleblowing provisions that came into effect in the financial services sector in 2016, alongside the senior managers and certification regime which is targeted at improving individual accountability in this sector and which is intended to promote an open culture encouraging employees to raise concerns about poor behaviour as a key element of good corporate governance.  There are concerns that these whistleblowing regulations have not gone far enough to protect whistleblowers and there is speculation that this investigation will lead to demand for more meaningful scrutiny and accountability of financial institutions by the regulators. 

Despite recent legislative changes and increased emphasis on supporting whistleblowers, there are concerns in some quarters that the regimes for the protection of whistleblowers still leave a lot to be desired.  Whether the media attention surrounding the Barclays investigation will resonate into the wider corporate culture is still to be seen.  What is clear is that whistleblowing needs to be addressed by all companies and employer organisations alike in order that effective systems are put in place to provide employees with the necessary safeguards.


Self-employed contractors – can SME’s benefit from the new government portal and challenges to the rules?
7 April, 2017

Last month HMRC launched a web portal called the Employment Status Service (ESS) with the primary aim of helping public sector bodies to determine the tax status of their contractors https://www.gov.uk/guidance/check-employment-status-for-tax, but the site can also be used to give guidance to the private sector for those employers wanting to ensure they are not facilitating tax avoidance by their contractors.

Businesses will need to exercise caution though as the system has faced criticism for inaccuracy and in relation to its functionality.  Concerns have also been raised that it fails to make a proper assessment of employment law.  The subtle differences between the rules to determine whether a person is self-employed for tax purposes and employment law purposes have caused confusion for a number of years.  One of the key tests to determine whether a contractor is genuinely self employed is if they can supply a substitute.  Just by indicating that a substitute can be supplied is adequate for the online tool to determine self employed status, however this will not be so clear cut for employment law purposes, which would look behind any agreement to determine whether a substitute could genuinely be supplied and if it would be acceptable in practice. 

Changes to IR35 Rules which came in on 6th April mean that public sector bodies will need to treat contractors as salaried workers unless they can prove they conform to IR35 rules.  Until now the onus has been on contractors to declare themselves “outside” of IR35 to avoid being taxed in the same way as permanent employees, and to conduct their business in a way that does not risk them being considered one.  It is worth using the online tool and keeping the assessment as evidence should HMRC carry out an audit.  Even if the status of the contractor has changed, this will be good evidence that they were previously assessed as self employed.  It is also advisable to have a contract for services in place which sets out the intention between the parties.

Some in the public sector have predicted as a result of the changes that there will be an exodus of self-employed contractors to the private sector, particularly in IT fields where there are already quite severe shortages of skilled professionals.  Currently reports have been largely focussed on large companies putting themselves forward to pick up disgruntled contractors, like IBM, Accenture and Capita, but smaller companies may also be able to benefit from a better recruitment environment.


Businesses beware – as gym chain Virgin Active found out – discrimination is not limited to employees. You may be liable for the actions of your service providers towards your clients!
3 April, 2017

The media has recently reported on a case in which an autistic man, Ketan Aggarwal, brought a successful disability discrimination claim against Virgin Active after he was insulted by one of their gym instructors.

Case

In 2015 Mr Aggarwal was attending a spin class at the gym when one of his fellow cyclists complained that the music was not motivating enough. Mr Aggarwal agreed with her, and as a result, the instructor is said to have yelled: ‘Don’t tell me how to do my job’. Then at the end of the class it was alleged the instructor shouted over a microphone that Mr Aggarwal was ‘stupid’ and rudely dismissed his opinion in front of a class of 30. 

Mr Aggarwal claimed that he had previously made gym staff aware of his autism, so made a complaint to Virgin Active about the way that he had been singled out by the instructor. When Virgin Active failed to take any action, Mr Aggarwal brought a claim against the company.

Mr Aggarwal was successful and Virgin Active was ordered to pay him £1,200 in damages, plus £190 in costs.  It was also ordered to apologise to Mr Aggarwal and to consider amending its equality training to staff and consultants.

Issues

Liability

Gym instructors are often engaged as independent contractors rather than as employees. However, under the Equality Act 2010 businesses can be liable for the acts of agents such as independent contractors, so it’s important to ensure that your equality policies apply to all employees, officers, consultants, contractors, volunteers and agency workers.

Training

You should also consider running training sessions for all such staff to make them aware of their legal duties under the Equality Act 2010. These steps are aimed at ensuring that discriminatory acts do not occur in the first place, but will also help show that the business has taken such steps as are practicable to prevent discrimination, should a claim be made against it.

Costs

The courts have the power to award compensation in discrimination cases for injury to feelings, so the claimant doesn’t have to show that he has suffered any financial loss. There may also be a costs order, as was the case here. The £190 costs order made in this case was low because Mr Aggarwal represented himself, after going to the library to learn about discrimination law. However, those with legal representation can incur costs running into thousands of pounds.  

Publicity

Also, as shown by this matter, a claim brought against you by one of
your clients could result in negative publicity and damage client relationships.

The Equality and Human Rights Commission has produced some specific advice and guidance for gyms and health clubs, which you can access here.


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