Archive for the ‘Employment’ Category

TWEETING, FACEBOOK, MYSPACE and EMPLOYEES

Monday, March 19th, 2012

TWEETING, FACEBOOK, MYSPACE and EMPLOYEES

Employees who also have profiles on social media sites such as Twitter, Facebook, LinkedIn, myspace and any business networking or hobby and craft social networks as well as blogs, should ensure they have checked their employer’s code of conduct or employee handbooks and ensure they comply.

Even if an employer does not include social media as part of their code of conduct or employee handbooks, employees should take care when making comments about their employer or other employees when updating their status on social media sites. Employers do not need to be a member of Twitter to see what tweets mention them. Similarly, depending on privacy settings, Facebook status updates, wall postings and photos can be seen by employers. Facebook’s privacy settings allow users to create lists of friends so employees can create a ‘work list’ that includes their employer and colleagues who are also friends and check that status updates complaining about a bad day at work are only seen by friends who are not also colleagues.

Openly criticising your employer in a letter to a local newspaper or magazine or bringing your employer into disrepute by bad behaviour at an after-work party, can result in disciplinary proceedings being brought against an employee. So can blog articles, status updates or tweets criticising an employer. There have been instances of employees being sacked after criticising their employer or complaining about their job on-line where the employee did not realise their employer could see their updates.

Search companies such as Google and Bing can now include social media updates as part of their ‘real time’ search features. This means that employee’s tweets or Facebook status updates aren’t just visible to other Twitter or Facebook users, but also to browsers making a search via a search engine. Search engines see this as a valuable addition to their services because news stories are surfacing on social networking sites before they appear on more traditional news sites.

This means employees need to take care about what they say about their employer or job before updating their social status or tweeting. Employers should have policies in place regarding the use of social media or extending their code of conduct to include on-line activity.

However, employers need to take care when monitoring their company name on-line and ensure their monitoring isnotdiscriminatory.

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Tweeting, Facebook, MySpace and Employees

Friday, November 12th, 2010

Employees who also have profiles on social media sites such as Twitter, Facebook, LinkedIn, myspace and any business networking or hobby and craft social networks as well as blogs, should ensure they have checked their employer’s code of conduct or employee handbooks and ensure they comply.

Even if an employer does not include social media as part of their code of conduct or employee handbooks, employees should take care when making comments about their employer or other employees when updating their status on social media sites. Employers do not need to be a member of Twitter to see what tweets mention them. Similarly, depending on privacy settings, Facebook status updates, wall postings and photos can be seen by employers. Facebook’s privacy settings allow users to create lists of friends so employees can create a ‘work list’ that includes their employer and colleagues who are also friends and check that status updates complaining about a bad day at work are only seen by friends who are not also colleagues.

Openly criticising your employer in a letter to a local newspaper or magazine or bringing your employer into disrepute by bad behaviour at an after-work party, can result in disciplinary proceedings being brought against an employee. So can blog articles, status updates or tweets criticising an employer. There have been instances of employees being sacked after criticising their employer or complaining about their job on-line where the employee did not realise their employer could see their updates.

Search companies such as Google and Bing can now include social media updates as part of their ‘real time’ search features. This means that employee’s tweets or Facebook status updates aren’t just visible to other Twitter or Facebook users, but also to browsers making a search via a search engine. Search engines see this as a valuable addition to their services because news stories are surfacing on social networking sites before they appear on more traditional news sites.
This means employees need to take care about what they say about their employer or job before updating their social status or tweeting. Employers should have policies in place regarding the use of social media or extending their code of conduct to include on-line activity.

However, employers need to take care when monitoring their company name on-line and ensure their monitoring is not discriminatory.

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Dismissal – An Employers Guide

Saturday, July 24th, 2010

Employers must be cautious when taking the decision to dismiss an employee as such action may leave the employer open to wrongful or unfair dismissal claims.

There must be a fair reason for the dismissal. The dismissal can only be for a fair reason if:
– it relates to the employee’s conduct;
– it relates to the employee’s capability or qualifications;
– it is because of redundancy;
-it is because the employee has reached the normal retirement age;
– continuing to employ the employee would be illegal, e.g. because the employee is a van driver and he has just received a driving ban; or
-it is for some other substantial reason. This is understood to be a fair reason that does not fall under the other categories.

A dismissal for any other reason would be unfair.

Generally, employees must have been employed for one year before they can bring a claim for unfair dismissal. However, certain types of dismissals are deemed automatically unfair and employees are protected as soon as they start work. These include dismissals for reasons connected to pregnancy, parental leave, requests for flexible working and whistleblowing.

An employer may still be held liable even if there is a fair reason for the dismissal if it does not follow a fair procedure when dismissing the employee. The employer should consult the ACAS Code of Practice on Disciplinary and Grievance Procedures.

The employer must also show that it has acted reasonably in treating one of the fair reasons as a ground for the employee’s dismissal. For example, if the employee is found to be incapable of carrying out the job, the employer should give the employee timeto improve and may even be required to offer the employee appropriate training.

The employer should also ensure that it gives the employee his or her full notice period or pays the employee a payment in lieu of their notice period. An employer’s failure to give adequate notice or payment in lieu before dismissal is likely to result in a wrongful dismissal claim by the employee.

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Dismissal – Unfair & Constructive

Saturday, July 24th, 2010

In order to bring a claim for unfair dismissal, an employee must have been dismissed.

There will be a dismissal if:

The employer terminates the employment, either summarily (that is, with immediate effect) or on notice.

The employee resigns (with or without notice) and can establish that they were constructively dismissed. This requires the employee to show that:

There was a fundamental breach of contract by the employer.

They resigned because of that breach.

They did not delay before resigning (as a delay can mean that the employee has affirmed the contract and lost their right to claim constructive dismissal).

A constructive dismissal is not necessarily an unfair dismissal. The tribunal will look at the employer’s conduct and decide whether it acted fairly.

The employer does not renew a fixed-term contract on the expiry of the fixed term.

The employee retires.

The employee will not have been dismissed if their employment terminates:

Following the employee’s resignation unless of course there is a constructive dismissal. There will be a dismissal if the employee has given notice and the employer dismisses them during the notice period.

By agreement of the parties. This is unlikely to include voluntary redundancies provided there is a true redundancy situation but may include early retirement.

By operation of law, for example:

Because the contract has been frustrated by an unforeseeable event that makes performance impossible or unlawful or radically changes the contract. In practice, it is difficult to establish that a contract has been frustrated.

Because of a supervening event. This could include the death of the employee or an individual employer, the dissolution or major reconstruction of the employing partnership and certain insolvency situations.

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Compromise Agreements

Saturday, July 24th, 2010

This article sets out the use of a compromise agreement from the perspective of an employer and employee.

Employer
If you are an employer and have decided to let a member of staff leave your organisation you must be very careful not to contravene any employment laws relating to dismissal.

One way of alleviating any concern is to agree a compromise or a ‘settlement’ with your employee. Once agreed it is vital that you have this arrangement expressly detailed in a contract – also known as a Compromise Agreement.

This document will set out exactly what has been agreed. It will also bar your former employee from taking any legal action against you in relation to their dismissal.

Employee
If you are an employee and have been offered a sum of monies before leaving your employment you will be asked to sign a compromise agreement. This will set out what you are going to be paid and what rights you will be forfeiting upon receipt of these monies.

As part of the legal process you will be asked by the Solicitor for your employer to have the agreement checked by an independent Solicitor so that you can be given advice on the suitability of the agreement.

It is vital that this is done as any issues between you and your employer must be dealt with at this stage. It is important that the agreement is not against your best interests and that you are getting what you deserve.

In most cases the employer will pay your legal fees.

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Employment Tribunal Awards, Race Discrimination and Unfair Dismissal

Saturday, June 12th, 2010

An assistant director of nursing won her case for race discrimination against her former employer, the University Hospitals Trust, and was awarded £115,000 compensation.

Dr Saiger was born in the UK and is of mixed race. She was told during an appraisal that she was the “wrong colour and wrong culture” for Cumbria, where she worked. Her employer denied using those words in an Employment Tribunal but the tribunal ruled that he had more likely than not used those words and found she had been unfairly dismissed and subject to discrimination on grounds of race.

The employee later commented that she felt as if she was being told that she was not going to be promoted to the post of director from her post as assistant director on the basis of her race rather than her ability to do the job. She was sacked after raising a grievance about her treatment.

In a similar case, Derby Specialist Fabrication Ltd v Burton, the employee was awarded just over £19,000 in compensation for constructive dismissal and racial discrimination which included an award for injury to feelings.

In this case the Employment Tribunal found that the employer allowed widespread racial abuse in the workplace and that the personnel manager did not appear to understand that black employees might find it offensive to be called racially abusive names.

If you have been refused promotion or training on the basis of your race, colour or ethnic origin, you could have a claim for racial discrimination. Unlike unfair dismissal where you have to have worked for your employer for at least 12 months, there is no length of service limit for racial discrimination.

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Employee Grievance Meetings – What to expect

Sunday, May 9th, 2010

If you have a grievance with your employer you should attempt to resolve the grievance informally. However, if the grievance cannot be solved informally, you should raise a formal grievance with your employer following your employer’s formal procedures for grievances.

You should write to your employer setting out the exact nature of your grievance, providing as much information and evidence as possible to substantiate your grievance.

Your employer must then arrange an initial meeting at a reasonable time and place to discuss your grievance.

It is important to ensure that you prepare for the meeting. It may be helpful for you to make a list of the issues you wish to discuss with your employer during the meeting.

Your employer will guide the meeting and will normally go through the issues that you have raised and give you the opportunity to comment. The main purpose of the meeting should be to try to establish the facts and find a way to resolve the grievance.

You have a legal right to take a companion to the meeting with you. To exercise this right, you must make a request to your employer that someone comes with you. They may be a colleague, a trade union representative or a trade union official. A companion can take notes during the meeting and can talk to your employer on your behalf.

After the meeting, your employer should write to you to give you their decision. If you are unhappy with your employer’s decision you are entitled to request a further meeting in order to resolve the grievance.

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The National Minimum Wage

Friday, November 27th, 2009

The National Minimum Wage Regulations became law on the 1st April 1999 to enforce a statutory minimum wage making it illegal for employers to pay less.

The Regulations apply to employers in the UK, regardless of the size of the business, subject to the exceptions listed below.

The Minimum Wage Rates
1. Standard minimum wage of £5.80 per hour for workers aged 22 or over.

2. Minimum wage level of £4.83 per hour for workers aged 18-21 inclusive. This is known as the “development rate”.

3. Rate for 16 and 17 year olds. Minimum wage level of £3.57 per hour for workers aged 16-17.

4. Fair Piece Rates From 1st October 2004 employers have had to pay employees on piece rate work the same as the national minimum wage. From April 2005 this rate was increased to 120% of the national minimum wage. (This means that most piece workers will instead be paid the national minimum wage hourly wage.)

Workers Covered by the Regulations The following workers are covered by:

  • Full-time workers
  • Part-time workers
  • Casual workers
  • Home workers
  • Freelance workers
  • Temporary & agency workers
  • Those of retirement age or pensioners if they are working
  • Piece workers, who must be paid the minimum wage for every hour worked.

(Detailed information regarding Piece workers is provided in the National Minimum Wage Regulations).

Workers Not Covered The Regulations do however allow for exceptions, the following workers are not covered:

  • Some Apprentices
  • Members of the armed forces
  • Share fishermen
  • Volunteer workers
  • Prisoners employed during their sentence
  • The self-employed
  • Au pairs and nannies.

Employers will not be able to avoid paying less than the minimum wage by making current employees become self-employed. There are strict tests under employment law
regarding who is judged self-employed and who counted as an employee.

Enforcement of the Regulations The Regulations are enforced by the Inland Revenue and the Contributions Agency.

An employer can be served with an Enforcement Notice by the Inland Revenue or the Contributions Agency instructing him to comply with the law within a set time period.
If the employer fails to comply they will be made to pay a civil fine of twice the amount of the national minimum wage per day for every worker paid below the minimum
wage.

There is also a criminal fine for the following situations:

  • Refusing to comply with the Regulations.
  • Failing to keep proper wage records or keeping false records.
  • Obstructing an official from either the Inland Revenue or the Contributions Agency.

Finally An employee cannot agree orally or in writing with his / her employer to be paid less than the minimum wage, this will still be an offence committed by the
employer.

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How Many Hours Do Your Workers Work?

Thursday, October 22nd, 2009

Following the recent failure of attempts by the European Union to change the Working Time Directive, so as to make it unlawful to allow a person to work more than an average of 48 hours a week, the current Directive remains in force. This means that the opt-out from the 48-hour weekly working limit negotiated by the UK remains in place.

With many businesses trying to cut staff costs, now is a good time for employers to check that their efforts to cope in difficult economic circumstances do not mean that they are failing to comply with the laws relating to working time.

Under the Working Time Regulations 1998, which implement the European Working Time Directive into UK law, the general rule is that an employer must take all reasonable steps to ensure that the working time of any adult worker does not exceed an average of 48 hours for each seven days during a 17-week reference period.

However, if an individual worker is willing to work more than an average of 48 hours per week, this is allowed provided that this is evidenced by a signed opt-out agreement. The agreement must be revocable. A worker who does not wish to sign an opt-out agreement must not be subjected to any detriment as a result. For workers under 18, the maximum working week is 40 hours. These hours may not be averaged out and no opt-out from the weekly limit is available to young workers.

However, if no adult is available to do the work and the young worker’s training needs are not affected, he or she may work more than 40 hours if doing so is necessary to maintain continuity of service or production or in order to respond to a surge in customer demand.

The employer must keep an up-to-date list of adult workers who have agreed to work more than the 48 hours a week average and retain adequate records which show whether working time limits in general are being complied with. These must be kept for two years from the date they were made. There are additional record- keeping requirements relating to hours worked by young workers and where work involves special hazards or night work.

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The Gender Pay Gap – Be Prepared!

Thursday, October 22nd, 2009

The gender pay gap is the term used to describe the difference between the hourly earnings of men and women. It is determined by calculating the overall pay of women as a percentage of that of men. The pay gap is the difference between this and 100 per cent. So, for example, if women’s pay is 80 per cent of men’s, the pay gap is 20 per cent.

There are different ways of calculating the gender pay gap. If calculated using the mean (average) hourly pay, women’s pay (excluding overtime) was 17.1 per cent less than men’s pay in 2008, showing an increase on the comparable figure of 17.0 per cent for 2007.

At present, private sector employers are only under an obligation to disclose gender pay information if requested to do so as part of a questionnaire under the Equal Pay Act 1970 or during Employment Tribunal proceedings. However, the Equality Bill contains a power to require employers with more than a specified number of employees to report on the gender pay gap. The original provision was for those with more than 250 employees to provide this information but a reduction in the
number to 100 has been mooted.

Initially, organisations with more than the specified number of employees will be ‘encouraged’ to volunteer information on the average hourly pay of male and female workers. To this end, the Equality and Human Rights Commission will carry out a consultation in order to develop a system of pay reporting for the private sector. If by 2013 it is clear that a voluntary reporting system has been ineffective in narrowing the gender pay gap, legislation will be brought forward to force disclosure. The Equality Bill also bans secrecy clauses which prevent staff from disclosing their salaries to colleagues.

A recent survey of senior Human Resources professionals revealed that only 29 per cent of organisations had conducted gender pay audits and only five per cent had actually reported their findings. Employers would therefore be well advised to carry out an audit sooner rather than later and to ensure that any discrepancies are remedied so as to reduce the risk of equal pay claims in the future.

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