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Social media: the opportunities and the risks

Find out more about the latest social media/employment law cross-over case law, and the importance of having a social media policy in place, in my latest article for People Management.

http://www2.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2017/10/23/what-does-case-law-say-about-social-media.aspx

Social media: the opportunities and the risks

Monitoring employees’ communications

The European Court of Human Rights has ruled that the Claimant's Article 8 right to privacy was breached when his employers investigated his private messages. This is notwithstanding the fact that the employer's policies clearly set out that personal use of its computer systems was prohibited.
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Monitoring employees’ communications

BBC pay: Gender pay gap back in the spotlight

On Wednesday, the BBC published its annual report on pay for stars earning more than £150,000, and the statistics have been revealing to say the least. As an illustration, the top five highest earning men earn three times more than the top five highest earning women. Whilst the fact of a pay gap may be unsurprising, the scale is still shocking.
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BBC pay: Gender pay gap back in the spotlight

Brexit: A ‘Norway-style deal’?

The Labour Party has made it clear that it will not support the 'Great Repeal Bill' in its current form. It was reported last week that at least 15 Conservative MPs are in talks with a group of Labour MPs about a deal which could keep the UK signed up to the principle of free movement after it leaves the EU.
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Brexit: A ‘Norway-style deal’?

Transparency: Business champion calls for the publication of age data

Transparency seems to be the goal. The gender pay gap reporting obligations came into force on 6 April 2017. The Liberal Democrats have called for mandatory reporting on ethnicity pay gap. Now, Andy Briggs, the Government’s business champion for older workers, has called for organisations to publish age data, and to sign up to a “Commit & Publish” pledge to secure at least a million more employees over the age of 50 in the workplace by 2022. This is a target increase of 12 per cent and is proposed in response to an apparent skills gap in the economy.

A number of employers have already agreed to the pledge, including Aviva, Atos, Barclays and the Cooperative Group.

Employers should start to consider the logistics of wider data collection and analysis obligations, the potential reputational and legal risks of failing to report, and any associated litigation risks of analysis exposing a wide pay gap or statistics highlighting a skewed workforce in terms of age.

Transparency: Business champion calls for the publication of age data

The Taylor Review: a new right to request fixed hours?

Zero-hours contracts remain controversial and, last month, fast food chain, McDonald’s, confirmed that it will offer its workforce of 115,000 a choice as to whether to work fixed hours or remain on their zero-hours contracts. McDonald’s had previously trialled this arrangement and they found that only around 20% of staff chose to move to fixed hours, with the majority preferring the flexibility of the zero-hours arrangement.

There has been speculation that, inspired by the McDonald’s arrangement, Matthew Taylor’s highly anticipated review on the gig economy is likely to recommend a new right for workers on zero hours contracts to secure a guaranteed number of hours. It is expected that the right will be structured in a similar way to the right to request flexible working, with the employer maintaining the right to refuse the request for specific statutory reasons only.

The Labour party has pledged to ban zero hours contracts completely but the McDonald’s experience suggests that there may still be a place for them in the modern working environment.

The Taylor Review: a new right to request fixed hours?

Social Media: The Employer Strikes Back

The recent case of Plant v API Microelectronics Ltd should serve as a reminder to employees of the potential dangers of using social media to post comments about their employer, and to employers of the importance of having in place a clear social media policy.

In that case, API introduced a policy which prohibited unacceptable social media activity, including posting comments that could damage the reputation of the company. Following an announcement of a proposed relocation, Mrs Plant unwittingly posted a comment about suing her employer on Facebook, not realising that the page was linked to her employer’s technology.

API instigated a disciplinary process, ultimately leading to Mrs Plant’s dismissal. Mrs Plant claimed unfair dismissal in the employment tribunal, relying on her otherwise clean disciplinary record and long length of service. The Tribunal held that, whilst the decision may seem harsh, the dismissal was still within the band of reasonable responses by the employer and, as such, ultimately fair.

Social Media: The Employer Strikes Back

Mental Health and the Equality Act

It’s a well known fact that mental health issues are capable of constituting a disability for the purposes of the Equality Act 2010 (the Act). However, to fall under the current definition of disability, the condition must have a “long-term” effect on the individual’s normal day-to-day activities. The Act provides that a condition will be regarded as long term if it has lasted, or is likely to last, for at least 12 months.

Accordingly, short term mental health issues, including conditions such as stress, anxiety and depression may not be covered by the Act and employees can find themselves without the layer of protection that the Act provides, including an obligation on the employer to make reasonable adjustments.

With statistics suggesting that 1 in 4 people in the UK will experience mental health problems each year, the Government is seeking to ensure that mental health issues are treated equally to physical impairments.

Last week, Health Secretary, Jeremy Hunt, suggested that, if elected, the Conservatives would amend the Act. Specifically, they would remove the requirement that to qualify for employment protection against discrimination on grounds of mental health an individual must have had the condition for a period of 12 months or more.

Given the prevalence of mental health issues, this announcement could be concerning for employers. Indeed, it is not unusual for employees undergoing a disciplinary or performance management process to be signed off due to stress, and the proposed changes could significantly affect the way in which employers will need to manage those employees. In light of the impact on businesses, notwithstanding the commitment from Mr Hunt, the Government would be likely to consult on any proposed changes before bringing them into effect.

Mental Health and the Equality Act

Fulton and anor v Bear Scotland Ltd

The EAT has confirmed that a gap of more than three months between non-payments or underpayments of wages breaks the ‘series’ of deductions for the purpose of bringing an unlawful deductions from wages claim. In the context of holiday pay, what this means is that where there has been a gap of more than three months between underpayments of holiday pay, the earlier payments in the series will be time barred, although the Tribunal may exercise its discretion to extend time.

Fulton and anor v Bear Scotland Ltd

General Election countdown: Immigration – what’s next?

What’s going to happen to immigration in a post-Brexit era? That’s the million dollar question. Whilst there has been huge speculation as to what our immigration system and net migration figures are likely to look like going forward, little clarity has been provided as yet.

Following the leak of the draft Labour Manifesto, it has been reported that Jeremy Corbyn has agreed to toughen up his message on immigration. The Labour Party has acknowledged that free movement of workers is unlikely to be possible once the UK leaves the EU, but has stated that imposing new immigration controls will not be top of its list of priorities if it wins the election. It’s not really clear where that message leaves us when trying to predict what the new model is going to look like.

The Conservatives have indicated that they will stick by pledges made in David Cameron’s 2010 manifesto to cut migration to “tens of thousands”, despite having missed the target after making the same promise in 2010 and 2015. Again, it’s not clear from their rhetoric so far how they hope to achieve this, although Prime Minister May has reiterated that when we leave the EU we will have the opportunity to make sure we have control of our borders.

UKIP has gone one step further, as it is prone to do, pledging to cut net migration levels to zero within five years by asking skilled workers and students to get visas and banning migration into the UK for unskilled and low skilled workers. This time it’s not clear how UKIP intend to do the maths to achieve a net migration level of zero.

And then there’s the Liberal Democrats who are against stricter migration controls. Details of the party’s policies on migration are yet to be revealed but Tim Farron recently tweeted that “immigration is a blessing and not a curse”.

General Election countdown: Immigration – what’s next?