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Legal Updates

Will you keep your New Year resolutions?

01 February 2012 #Employment


No chocolate, go to the gym etc etc etc ......How about trying some HR ones instead!

Keep up to date 

There are many forthcoming employment law changes on the horizon as well as the usual updates to tribunal award limits which take effect on 1 February.  

In April it is expected that that the qualifying period for unfair dismissal will increase to 2 years, there will be various tribunal reforms including an increase in deposit orders and costs awards, unpaid parental leave will increase to 4 months and working time holiday rules are set to be amended.  

Come October employers need to be thinking about pensions auto-enrolments and possible national minimum wage increases.  It is time to think ahead and be organised. 

Introduce a social media policy

Employers have every right to seek to protect confidential company information by restricting LinkedIn and other profiles.  Aside from the protection of confidential information, a recent case has highlighted the issues surrounding the use of sites such as LinkedIn to register an interest in career opportunities and whether it is legitimate to sack or discipline someone for doing so. 

Mr Flexman, a HR executive at BG Group, posted his CV on his LinkedIn account and ticked the ‘career opportunities’ box on the site.  According to BG Group a new company policy instructed employees not to tick the ‘career opportunities’ box on the site and Mr Flexman was asked to remove his CV.  Mr Flexman was accused of using social media inappropriately and put through a disciplinary procedure. 

Employees cannot be prevented from looking for a new job, provided they are not using confidential company information.  BG Group claimed that Mr Flexman included confidential information on his CV about how he reduced the firm’s rate of staff attrition.  Mr Flexman argued that the information regarding staff attrition is readily available in the company’s annual report and that 21 of his colleagues, including the manager of the disciplinary process, had ticked the career opportunities box themselves and had not been disciplined. Mr Flexman eventually resigned over the matter and is claiming constructive dismissal. 

The case has been heard by the Tribunal and the outcome is awaited but it is essential to make sure that you have adequate guidance in place to ensure employees understand what you consider to be acceptable use of social media and the penalties they might face if they abuse such social networking tools.  A proactive rather than reactive approach is advisable.

You have no excuse not to introduce a policy as a free social media policy is available on buddy!

Ensure all your contracts of employment and HR policies and procedures are up to date

Check that they not only capture the correct job titles, salary and holiday entitlements, but that they also comply with the current legal requirements and are adequate to protect your business. 

Check the status of potential agency workers

The Agency Workers Regulations 2010 came into force on 1 October 2011. The Regulations will saw a shift in the rights of agency workers or ‘Temps’ and there are tricky rules which have to be applied to calculate whether any particular temp has reached 12 weeks’ service.  All those who use agency workers should be aware of these changes and act now to identify the issues and deal with them if you have not already done so.

This means you need to ensure that:

(a)    You know which Temps are working for you; what jobs they are doing and how long they have been with you;

(b)    All Temps have access to certain facilities and information about job vacancies in your business; and

(c)     You are able to provide certain information to the Agencies about the pay and working conditions of your employees.

If you deliberately breach the legislation, the Company could face a fine of up to £5,000. Any Temp who has not had the same access to staff facilities would sue the Company only (not the Agency). If the Temp’s claim was successful, the Company would have to pay compensation to the Temp. Any Temp who feels they have not received the same pay and working conditions as your employees (or as they would have received if they had been employed directly by you) after reaching 12 weeks’ service can sue the Agency and the Company.  If the Agency shows that the Company did not give it the necessary information about your employees’ terms and conditions, then the Company will be solely responsible for breach of the Temp’s rights.  The Temp may receive compensation for breach of their rights. There is no cap on that compensation but there is a minimum of 2 weeks’ pay.

We wait to see whether many cases will be pursued in the employment tribunal system.  It is early days as the first date Temps would have accrued 12 weeks’ service has just passed by.

Check your anti-discrimination policies and training programmes

Remember discrimination claims do not require any minimum length of service before they can be brought. With this in mind, check that each of your discrimination polices are up to date and include reference to the Equality Act 2010 if that has not already been done.  Then make sure that the polices have been read and understood by the people who have to implement them as well as your employees in general.  You might also consider including training on equal opportunities or anti-bullying and harassment as part of your induction programme or as refresher training for existing employees as appropriate. You need to practice what you preach! A policy alone may not convince a Tribunal that you have taken reasonable steps to avoid discrimination; the policy needs to be actively implemented through steps such as training.

Review sickness absence

Have you put that paperwork regarding an employee on long term sick to the bottom of the pile? Get it out and take control of the situation. Make an action plan so that matters progress.  Do you need another GP or Occupational Health Report?  Are there any duties the employee can perform?  Is it time to invoke or continue with the capability procedure?  Remember to be alert to potential disability discrimination issues.

Review the policy wording for sickness and holidays

The law relating to holiday rights for employees on sick leave has been subject to change as case law in this area has developed.  In short, the door has been left open for employees on sick leave to claim back historic holiday, to take paid annual leave whilst on sick leave and to defer planned periods of annual leave until a later date where it coincides with sick leave.  This is a confusing area so it is important to review your policies and contractual terms that deal with this.  Some practical tips include differentiating contractual holiday entitlement over and above statutory, implementing efficient monitoring systems, serving notice on employees to take holiday and offering opportunities for employees to take holiday.

Retirement

The default retirement age was abolished, subject to transitional provisions, on 6 April 2011.  Under the transitional provisions there could still be retirements taking affect until October 2012 so don’t forget about this topic!  You may have had a request for an extension to a retirement age but the last day that that request could be considered was 4 January 2012.  Why not double check the status of any ongoing retirements to ensure all is still progressing as it should. 

Let’s hope these resolutions are easier to keep than the traditional ones!

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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