Category Archive: Employment Law

1. Taking disciplinary action against an employee for comments made on a personal social media account

   July 15, 2021 11:59 am Leave a Comment

   So, football didn’t quite make it home on Sunday night after stalling on the home straight, much to the disappointment of any England fan. As is often said of England, it is the hope that gets you in the end, but it was a commendable, history-making effort by a young, talented and thoroughly likeable group of footballers, and a group that may very well go one better in tournaments to come.

   Sadly though, it was soon reported that following the penalty shoot-out defeat at the hands (or more precisely, feet) of Italy, some so called ‘fans’ took to social media to racially abuse the England players who had missed their penalties in the shoot-out.

   If you are an employer and one of the offending individuals was one of your employees you would no doubt be appalled and, if you are identifiable as that individual’s employer, the potential damage to your reputation as a result of that connection is considerable. This raises the question – can an employer take disciplinary action against an employee for comments made outside of working hours and on a personal social media account?

   In one particular case the offending individual’s employer was identifiable from social media accounts linked to the social media account that had posted the racist comments, and that employer has suspended the employee pending a disciplinary investigation. The same happened when the abhorrent harassment of the government’s chief medical adviser, Chris Whitty, was shared on social media a couple of weeks ago, with that employee ultimately being dismissed by his employer.

   Whether disciplinary action is appropriate will always depend on the particular facts and circumstances of each incident but, in short, yes – it may be appropriate to take disciplinary action against an employee who has made offensive comments on social media, even if it was done outside of work hours and from a personal account.

   Factors to take into consideration when deciding if disciplinary action is appropriate in such circumstances, and ultimately whether a dismissal might be a fair outcome under employment law, are:

   • whether the employer has a social-media policy, and what that says about an employee’s use of social media
   • the nature and seriousness of the alleged misuse
   • actual or potential damage done to customer relationships or the reputation of the employer, and the impact of the employee’s conduct on the employer’s business
   • any previous warnings for similar misconduct in the past
   • the reasonableness of the employer’s disapproval of the employee’s behaviour
   • the employee’s position and role
   • whether the name of the employer or names of customers or colleagues are mentioned in the post, the public account details, or linked identifiable accounts

   If an employer becomes aware of social media posts by an employee that it considers could warrant disciplinary action, then it is just as important that a full, fair and proper disciplinary investigation and procedure is undertaken as it would be for any other incident of misconduct that may occur in the workplace, in order to protect the employer as far as possible from claims for unfair dismissal in the event that an employee is dismissed at the conclusion of those proceedings.

   If you would like to speak to one of our expert employment law solicitors in relation to the matters raised in this article, please get in touch on 01782 262031

2. Can I force my employees to get a COVID-19 vaccine?

   June 18, 2021 12:15 pm Leave a Comment

   Following a consultation conducted by the Department of Health and Social Care, the government has announced that vaccinations to protect against coronavirus (COVID-19) are to be made compulsory for anyone working in a CQC-registered care home in England providing nursing or personal care. Further consultation is taking place with regards to making vaccination mandatory for NHS workers too.

   This announcement has sparked a debate as to the autonomy and personal freedom of workers and the duty of employers to ensure the safety of their staff.  The British Medical Association, which represents doctors and medical students in the UK, has warned that making vaccination for care workers mandatory would be “a blunt instrument that carries its own risks” but this does not detract from the responsibility employers have to ensure their staff’s health and safety.

   This is not the first time that mandatory vaccination has been introduced in the healthcare sector though. Certain medical professionals are required to be vaccinated against Hepatitis B in order to carry out their roles.

   It may be that similar procedures are put in place in respect of the coronavirus vaccination programme and workers who refuse to be vaccinated may need to be prepared to be redeployed or they could be dismissed from their employment.

   While it is to become compulsory for healthcare workers to be vaccinated, mandatory vaccination is not expected to be introduced under law in other sectors. However, many employers are considering introducing a mandatory vaccination policy of their own.  Employers have a duty to ensure the health, safety and welfare (in so far as is reasonably practicable) of the people working for them, and this duty of care extends to those who physically interact with the business too.

   Introducing any such policy should be done with great care, as employers need to be mindful that a blanket approach could indirectly discriminate against certain groups with one or more ‘protected characteristics’ (which include disability, religion or belief and age). Assessments will need to be carried out to determine whether a mandatory vaccination programme is a proportionate method of addressing the risk posed to staff and those who physically interact with them, or whether other less intrusive options are available. Reasons why mandatory vaccination may be considered a reasonable management instruction might include a difficulty to employ other safety measures (such as social distancing) or a particularly high level of risk to individuals interacting with the business (as is the case with healthcare).

   Employers having a ‘one size fits all’ approach to coronavirus vaccination for their workers, which results in any worker being treated less favourably as a result of not being vaccinated, potentially puts the employer at risk of discrimination claims unless the organisation can justify the approach taken as being a proportionate means of achieving a legitimate aim.

   Whether mandatory vaccination is proportionate will depend on factors such as:

   • how the policy operates in practice;
   • the impact on individual workers; and
   • whether the risk to health and safety can be reduced in less intrusive ways.
     

   If implementation of a mandatory coronavirus vaccination policy is not handled with care by an employer there is a real risk that employees could ‘vote with their feet’ when an employer seeks to enforce that policy, and when employees leave due to the actions of their employers, the employer could face claims for constructive dismissal and/or discrimination.

   If you would like to know more about implementing a mandatory vaccination policy while protecting your business (as far as possible) from claims of discrimination or constructive dismissal, speak to one of our specialist employment solicitors today on 01782 262031 or fill out an online enquiry form here.

3. Domestic Abuse – is it our business?

   February 24, 2021 10:28 am Leave a Comment

   As employers, domestic abuse is not our business, or is it? 

   “There is a part for everyone to play, together we can signal to survivors and victims, that they are not alone” (Victoria Atkins Minister for Safeguarding)

   In the light of the recent lockdowns due to the coronavirus pandemic, calls to domestic abuse services increased by up to 80%. A new government report published in January 2021 entitled Workplace support for victims of domestic abuse https://www.gov.uk/government/publications/workplace-support-for-victims-of-domestic-abuse found that very few employers were aware of the signs of domestic abuse let alone have a policy in place to support survivors.

   So, when it comes to domestic abuse, where do employers come in? It could be that in many circumstances the only other people outside the home that survivors have contact with and talk to are their work colleagues.  These colleagues can be invaluable in helping to provide a link to support for the survivors of domestic abuse and it is likely to be beneficial to the work environment if survivors are made to feel they can talk to colleagues openly.

   In January 2021 Business Minister, Paul Scully wrote an open letter to all UK employers in which, when referring to the assistance employers can give, he indicated that it doesn’t mean making employers into counsellors or healthcare workers but the actions [he] outlined can be as simple as providing a safe space to talk which in turn can have a life-changing impact on survivors.

   The open letter can be viewed on the link below:

   www.gov.uk/government/publications/domestic-abuse-open-letter-to-employers-on-how-to-help-workers-find-the-right-support/domestic-abuse-open-letter-from-the+-business-minister-to-employers

   There are over two million victims of domestic abuse a year in the UK most, but certainly not all, of whom are women. The impacts on victims and their children can be significant and wide ranging. Victims may suffer long-lasting health problems but also crippling financial difficulties.

   There is also a considerable cost to the economy due to lost output as a result of time off work and reduced productivity as a consequence of domestic abuse.

   Lost productivity and absence linked to domestic abuse can mean significant losses for both individuals and employers. Research puts the losses to businesses at around £316m each year as a result of work absences related to domestic abuse.

   The coronavirus (COVID-19) pandemic has brought domestic abuse to the forefront, seeing increased coverage in the media largely due to the fact that many people are forced to work from home. It is notable that the Government has launched the hashtag  #YouAreNotAlone which gives guidance to employers as to how they can best reassure employees suffering domestic abuse and confirming the household isolation instructions do not apply to them if they need to leave the home to escape domestic abuse.

   Although it is recognised that there is no ‘one-size fits all’ approach to responding to the need for support for victims and survivors, there are some main characteristics a supportive workplace has

   • recognition of the problem, belief in the victim’s story and ensuring they consent to any further steps;
   • employers signposting to specialist services and suggesting alternative options for the individual to decide between; and
   • a clear and visible policy which sets out the support offer and approach for dealing with disclosures and issues related to domestic abuse

   Best practice for employers

   • working closely with trade unions (if applicable) and/or organisations specialising in supporting victims of domestic abuse in shaping a policy and approach;
   • having a comprehensive domestic abuse policy which sets out signs of domestic abuse, roles and responsibilities as well as what the employer can practically offer in terms of financial assistance, flexibility and paid leave;
   • offering  practical support  to employees for example paying salaries into separate accounts, additional financial assistance, access to counselling or other health related services, access to time and space within work to make calls and other arrangements as well as flexibility and time out of work;
   • taking steps to ensure safety in and around the place of work, providing a safe car park space or accompanying the employees to/from public transport, ensuring the details of  employee’s whereabouts are not accessible to others (particularly the perpetrator); and
   • having an appropriate approach to perpetrators or other employees showing abusive behaviours

   The company’s policy on domestic abuse should be embedded in the wider organisation:

   • a specific domestic abuse policy is more effective when it is embedded into the wider organisational frameworks and cultures so that it is cross referenced in HR policies and linked to approaches to diversity and inclusion and health and wellbeing
   • the policy should be followed through with appropriate signposting – e.g. putting up posters and leaflets/guidance around the workplace and on the internal intranet showing a list of local service providers or specialist apps
   • employers should consider becoming or appointing Domestic Abuse champions who raise visibility of the issue and are trained to spot the signs of abuse and how to respond and refer individuals on
   • senior management and leadership raising the issue of domestic abuse can also play a key role in changing workplace culture and breaking down barriers

   There are numerous areas of assistance available to support the employer in developing their response to domestic abuse and a few are mentioned below:

   Business in the Community COVID-19 Domestic Abuse Toolkit for Employers

   https://www.bitc.org.uk/toolkit/covid-19-domestic-abusesupporting-employees/

   The Everyone’s Business Advice Line for Employers

   https://www.hestia.org/everyones-business-advice-line

   Employers Initiative on Domestic Abuse website provides resources to support employers

   https://www.eida.org.uk/

   If you require any help or advice on a Domestic Abuse policy or any other areas of employment law please contact us on 01782 262031or email lawyers@tinsdills.co.uk

4. Tinsdills Solicitors Launch New Fixed Fee Advice Package

   March 31, 2020 3:12 pm Leave a Comment

   Leading law firm launches a brand new advice package in a bid to help local companies navigate the Government’s latest Job Retention Scheme.

   Tinsdills Solicitors announced today, 31^st March 2020, that it will now provide a brand new Fixed Fee Advice Package to help employers who need to implement furlough during the Coronavirus Pandemic.

   The Fixed Fee Furlough Advice Package will be available for any employer with fewer than 20 employees, looking for legal advice surrounding the furlough process.

   Priced at £150 plus VAT, the Fixed Fee Furlough Advice Package will include;

   • a review of applicable clauses within your employment contracts;
   • an appropriate template furlough agreement letter to be sent to employees;
   • general employment law advice on furloughing employees.

   Aiming to support local companies during this difficult time, the package will provide timely support, advice and guidance to allow employers to furlough affected employees seamlessly and confidently.

   David Morgan, Employment and Commercial Solicitor at Tinsdills Solicitors commented,

   “In these extraordinary times it is more important than ever that companies, especially start-ups and small businesses, feel there are support options available to them should they need to access them.

   “We recognise that this is a difficult time with a lot of uncertainty, which is why we want to provide a service that helps to make this process as smooth and straightforward as possible for all involved.”

   If you are an employer looking to start the furlough process, please do not hesitate to get in touch with David Morgan or Ryan Marr and book your Fixed Fee Furlough Advice Package today.

5. A Guide To Lone Working

   September 2, 2019 9:54 am Leave a Comment

   The Health and Safety Executive (HSE) guidance defines lone working as a case of someone who works by his/herself without close or direct supervision.

   A few examples include –

   • People who work,
     say, in a petrol station or shop
   • People who work from
     home
   • Mobile workers
     outside of their fixed base such as postal staff, estate agents, community care
     workers
   • Professionals
     visiting domestic and commercial premises
   • People who work
     separately from others (reception workers or those who work outside normal
     business hours)

   Some industries may prohibit lone working such as fumigation work, diving operations, vehicles carrying explosives.

   Lone working is not against the law and is generally safe practice. However, the worker has to take reasonable care of themselves and employers have obligations under the law to consider the health and safety risks for those who do work alone.

   

   The employer has a duty to assess risks and to take steps to avoid or minimise risks where possible. These steps may include:

   • Prevention
   • Response
   • Training
   • Management &
     supervision

   The risk assessment should be reviewed periodically and should assess:

   • Whether there are
     any tasks too dangerous to be carried out by a lone worker
   • Any appropriate arrangements
     to provide help or back-up

   Employers have a duty to consider any foreseeable emergencies and consider factors such as:

   • Is the workplace
     a specific risk to a lone worker
   • Is there a safe
     way in and out for one person
   • Is there
     machinery involved
   • Are chemicals involved
   • Is it necessary
     to lift heavy objects

   Training is particularly important for lone workers given there is limited supervision and to enable the worker to cope with any unexpected circumstances.

   There should be some supervision and monitoring and again this should be included in any risk assessment.

   Perhaps regular contact between the worker and supervisor is required by phones or other means. Is a manual or automated warning device necessary? Should the lone worker call into their supervisor or office once their task has been completed?

   An emergency procedure should be agreed and communicated to your employees. The best way of doing this is by way of a written policy.

   If your business has one or more lone workers then it may be relevant to have a very simple Lone Worker policy in place. This can be included as a stand-alone policy or could be included in your Staff Handbook.

   You may want to consider revising all your employment policies and procedures to make sure you are as up to date as you can be regarding obligations to your workforce.

6. What is a Settlement Agreement and When Can They be Used?

   August 13, 2019 9:09 am Comments Off on What is a Settlement Agreement and When Can They be Used?

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   A settlement agreement is a contract between an employer and employee (or former employee) that is used to record terms of agreement between the parties following the termination of employment. The main purpose of settlement agreements is that in signing them, the employee waives their rights to bring a claim against the employer in a Court or tribunal, and they usually involve an agreed payment from the employer to the employee.

   To be valid, the agreement must be in writing, must relate to particular potential complaints or proceedings, and must state that the relevant statutory conditions regulating settlement agreements have been met. Most importantly though, the employee must have taken advice from a relevant independent adviser, who must be named in the agreement.

   The cost of your independent adviser is usually covered by the employer. There should be a clause within the proposed settlement agreement that stipulates this and states the amount that they are willing to pay.

   There is specific criteria that the relevant independent adviser has to meet. This includes the stipulation that they must have a current professional indemnity insurance policy in place, and they have to be identified in the agreement so that they can sign to say that they’ve provided advice.

   They can be used in most circumstances relating to the termination of employment, including a redundancy situation, a gross misconduct dismissal, a capability dismissal, or even a mutually agreed termination.

   If you’re entering into a settlement agreement, you should remember that you’re doing so voluntarily – which means that the terms of the agreement are negotiable. So, if your employer offers a payment that you don’t consider to be fair, you can either negotiate this, or your independent adviser can do so on your behalf.

   In some situations, your former employer may offer you less than your statutory and/or contractual entitlement.  Usually, your settlement agreement should include a compensatory payment in addition to your statutory or contractual entitlements.  These statutory and contractual payments can be made up of notice pay, statuary redundancy pay, holiday pay, bonuses etc.  A compensatory payment is a separate payment altogether.

   So, it is worth noting that in signing the settlement agreement you are signing away your rights to bring a claim against your employer – which may not be a good idea if your employer is only offering payments equal to or less than your statutory and contractual entitlements. Again, your independent adviser is the best person to ascertain whether the payments that you’re being offered under the agreement are fair in all the circumstances.

   Your independent adviser will also handle tricky bits like distinguishing which payments are taxable and which are tax free, based on whether the payments are compensatory or salary payments. Compensatory payments are made for the loss of your job, and the first £30,000 will be paid tax free. Anything over that amount will be taxed in the usual way, along with all other payments (including notice pay, holiday pay and bonuses).

   In general, your independent adviser will help you to consider whether your settlement agreement is fair in all the circumstances. For example, if you’ve got a potential or actual personal injury claim, your adviser will be able to ensure that the wording of the agreement excludes this type of claim from the list of claims you are relinquishing, to ensure you will still be able to pursue it.

   Overall, it’s fair to say that settlement agreements are contracts that formally sets out the terms of the termination of your employment relationship. Your independent adviser is a requirement but is also there to ensure that the contract is worded and signed off in the manner that most benefits you.

   If you are seeking advice relating to your employment rights or a settlement agreement, feel free to get in touch with us. You can call us on 01782 652300 or drop us an email at lawyers@tinsdills.co.uk.

    

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7. ‘Zero Hours’ Contracts Explained

   October 8, 2015 2:12 pm Leave a Comment

   [vc_row][vc_column][vc_wp_text]The subject of zero-hours contracts has been in the news fairly recently, brought about due to a legal challenge against Sports Direct over its use of these contracts.

   The legal challenge is apparently raising the question that the use of zero-hours contracts discriminates against part time workers. This follows reports that 90% of SportsDirect’s employees are engaged under these contracts.

   Business Secretary, Vince Cable, has suggested that zero-hours contracts may be subject to legislation but ruled out a complete ban. He will decide whether to hold a formal consultation on specific issues in September.

   So what does a zero-hours contract mean?

   A zero-hours contract does not oblige the employer to provide work for the employee nor does it oblige the employee to accept work offered. Although the employee agrees to be available for work as and when required. It can be uncertain whether a person working under a zero-hours contract is an employee or a worker. The distinction is that an employee generally has more legal rights than a worker. When deciding whether a zero-hours contract means the individual has the status of an employee it will not just be the wording of the contract that is relevant, but what happens in reality will be considered. If the reality is the individual is offered and accepts work on a regular basis then any tribunal is likely to deem the contract to be an employment contract.

   In many cases zero-hours contracts can be beneficial to both employer and employee, particularly where the employer’s business is uncertain due for example to weather conditions or fluctuating business demands. It also benefits the individual who may wish to earn occasionally but does not wish to work set hours each week and has the ability to be flexible. Many students like to work in this way but an older workforce may also wish to earn on a more flexible basis.

   Many well known businesses such as The National Trust, Boots, Burger King, McDonalds, J D Wetherspoon, Subway, Cineworld and even Buckingham Palace use these contracts.

   It isn’t the nature of zero-hours contracts themselves that cause Vince Cable concern, it is more that some employers “exploit” the use of these contracts. However, it is clear that zero-hours contracts are on the increase and this shows that they will not be disappearing altogether any time soon but are likely to be subjected to more stringent regulations in the future.[/vc_wp_text][/vc_column][/vc_row]