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Electronic balloting: are trade unions about to leap into the digital age?

Back in the spring, when the Trade Union Act was in its bill stage, the House of Lords proposed an amendment for an electronic balloting review and piloting scheme. The amendment was incorporated into Section 4 of the Trade Union Act (which became law on 4 May 2016). This provision gave the Secretary of State six months to commission an independent review on the delivery of methods of electronic balloting (for ballots before action by a trade union). The fact that the review was announced on the last day available to the Secretary of State (3 November 2016) perhaps suggests that the government currently has bigger fish to fry. However, the former Chief Fire and Rescue Adviser for England, Sir Ken Knight, has now been tasked with looking at:

  1. risks of interception, impersonation, hacking, fraud, or misleading or irregular practices associated with electronic balloting;
  2. whether systems can be safeguarded to reduce risk of intimidation of union members and protect anonymity of voters;
  3. security and resilience of existing practices of balloting union members; and
  4. the aims of the Trade Union Act to ensure that strikes and related disruption to the public only occur as a result of the clear, positive decisions of those entitled to vote.

Sir Ken Knight now has until December 2017 at the latest to prepare his report. Once the report is presented to the Secretary of State, she will need to consider the report and publish her response to it. If there have not already been pilot schemes put in place by that time, it is likely that they will follow. Further, the Act requires the Secretary of State to consult relevant organisations, including professionals from expert associations, to seek their advice and recommendations. All this means that change is unlikely to happen quickly.

So will the trade unions be forced into the digital age by electronic balloting? Perhaps. It seems likely that there will be workable solutions to many of the issues highlighted above. However, by the time electronic balloting is effective, trade unions are likely to have been forced to modernise significantly in light of other challenges (including the increased use of agile and flexible working). Therefore, it is unlikely to be much of a leap for them.

Electronic balloting: are trade unions about to leap into the digital age?

Keeping up with the Germans?

The Women and Equalities Committee has demanded that the government publish a detailed plan to tackle the issue of pregnant women and mothers being forced out of work by employers’ outdated attitudes.

Pregnancy and maternity discrimination is often covert and regularly disguised as redundancy. It can be gradual and intensifying, or much more sudden (usually almost immediately following disclosure of pregnancy or return to work). Sometimes employers choose to discriminate by omission, perhaps failing to address health and safety concerns they would previously have been proactive about. The covert nature of this discrimination can make it more difficult for a mother to evidence the poor treatment and feel that her only choice is to leave her role. Research by the Department for Business Innovation and Skills and the Equality and Human Rights Commission suggests that pregnant women and mothers now face more discrimination than they did a decade ago.

In Germany, women and expectant mothers can only be made redundant in specified circumstances. The protection applies from the beginning of pregnancy until four months after childbirth. Dismissals will only be approved (by the state) in rare cases such as gross misconduct by the worker or the employer getting into severe financial difficulties. Increased protection from redundancy is just one of the recommendations the Committee has put forward in the UK for consideration by the government. They have cited the German system as a positive example. It is not to say that any changes would precisely mirror the German system, but would keep the UK in line with its peers. Other recommendations include:

  • potentially extending the three-month time limit for bringing a claim in pregnancy and maternity discrimination cases;
  • substantially reducing tribunal fees for discrimination cases;
  • extending maternity-related rights to casual, agency and zero hours workers;
  • an easily accessible and formal mechanism to compel employers to deal with concerns that a mother’s or baby’s health is being put at risk by their work; and
  • the Health and Safety Executive requiring employers to undertake individual risk assessments when they are informed that a women who works for them is pregnant, has given birth in the past six months, or is breastfeeding.
  • Theresa May has promised a bold, new positive role for the UK in the world. However, this is just one example whereby it remains helpful to understand how our neighbours are working to achieve best practice in common areas. No doubt the government will want to liaise with key interest groups in the UK before formalising any proposals.
Keeping up with the Germans?

Disregarded business groups dismay, as the apprenticeship levy is pushed through

The Government is pushing ahead with its proposal to require large employers, to “invest in apprenticeships”. Many thought the levy plans, which were not popular with many business groups before Brexit, would be shelved following the referendum result based on economic uncertainty. However, the Department for Education’s publication of the proposals for apprenticeship funding  means that it is likely that final proposals will be confirmed in October and imposed in April 2017.

The levy is designed to fund three million places for apprentices, by charging qualifying employers (those operating in the UK with a pay bill over £3 million each year) 0.5 per cent of their annual pay bill. Once employers have declared the levy to HMRC they will be able to access some of funding through their account on a new digital apprenticeship service. The latest consultation documents put flesh on the bones of the proposed funding regime. In the documents, the apprenticeship frameworks and standards are divided into 15 funding bands ranging from £1,500 to £27,000. The consultation documents cover a few more practical areas which may affect large employers, including cross-border funding and directing funds in a digital training account to another employer. They also propose that employers “co-invest” with the Government where they have insufficient training funds in their digital accounts, or they are not subject to the levy.

The previous Chancellor said that those paying the levy would “get more out than they put in”. However, an employer caught by the levy, still cannot say that the apprenticeship model does not meet the needs of its business, or opt out of the levy altogether. Employers not looking to buy apprenticeship training are instead likely to rebadge existing roles as apprenticeships to mitigate their costs.

The CBI, CIPD and British Retail Consortium have been vocal about their concerns about the levy and their feelings that businesses are being ignored. They warn that narrowing training covered and enabling employers to only reclaim off-the-job costs could result in training being cut back and quantity being put ahead of quality. They call on the Government to delay implementation to give time for full consideration and ensure that the levy is fit for purpose.

Employers wishing to share their views will need to complete the Department of Education survey (https://beisgovuk.citizenspace.com/ve/apprenticeship-funding-proposals) by 5 September, 2016.

Disregarded business groups dismay, as the apprenticeship levy is pushed through

Tailoring social media policies to catch Pokémon Go

In our article published today in HR-inform we consider the key steps employers can take to make their social media and information technology policies more robust and mitigate the risks associated with staff playing Pokémon Go.

Click here to read the full article.

Tailoring social media policies to catch Pokémon Go

…gotta catch ’em all!

Last week’s launch of the smartphone game “Pokémon GO” has swept the UK faster than you can say “gotta catch ’em all”. The aim of the game is to explore surrounding areas and catch characters that are hiding in real-life locations. Players use GPS signalling and augmented reality to discover the Pokémon. While many herald this app for its benefits to those who may not do much exercise, employers may need to watch staff productivity to ensure that they are not playing the game while they should be working.

Clearly, if an individual is playing Pokémon GO during work time, they will not be performing their duties. Soon after its release, Boeing discovered staff had downloaded the app on more than 100 work phones. As a result, it has issued a ban on its workforce from playing the game during working hours.

Some employers may allow their staff to continue their search for these illusive characters during lunch breaks. However, having staff wander round the office in their breaks looking for a “Squirtle” or “Rattata” is likely to disturb those who are still working. This could also pose a health and safety risk if workers are staring at, and being guided by, their screens and not looking at where they are walking. It is perfectly acceptable for employers to limit workers’ use of the app to areas outside the building to minimise the disruption it could cause.

If staff are wasting time interacting with this app instead of working, employers are also within their rights to approach this as a misconduct issue and engage the disciplinary policy. So what should employers do to manage this?

  1. Ensure that social media policies are up to date – while these may not specifically refer to use of the Pokémon GO app, it will set out the employer’s expectations.
  2. Ensure the IT and communications policy comprehensively addresses the use of company resources and how employers will deal with misuse.
  3. Where employees are using personal devices at work, consider including or updating the “bring your own device to work” terms in the IT and communications policy to clarify what will amount to acceptable use.
  4. Should there be any loss of productivity or misuse of company resources, follow the employer’s disciplinary policy, using a consistent approach with all staff.
  5. If employers consider it is a risk to work momentum, send a company-wide email reminding staff that they should not be playing the game instead of working and remind them of the relevant company policies.
  6. Avoid a “knee-jerk” reaction as this is likely to be a passing trend that will decline and be replaced by a new craze.
…gotta catch ’em all!

Brexit…hunkering down for the long haul…what we know so far

In 12 April 2016, in our article “The Great Brexit Debate: Protection for Workers” we shared our views on the potential impact of Britain’s exit from the European Union. Following the referendum, we have a clear mandate for exit. However, there is much doubt about what the future may look like for the UK and our relationship with Europe. It is likely that there will now be a prolonged transition period with the next government needing time to plan, prepare and negotiate the UK’s future.

Some key thoughts meanwhile:

  • The UK has a body of homegrown legislation protecting UK employment law rights. The fundamental right to claim unfair dismissal will not be affected by the withdrawal from Europe. The UK also had discrimination laws in place before its ascension to the EU.
  • EU aims and legislation are so established in our views of UK good employment practice that they are likely to remain fundamentally the same for now. Moving to a US-style system where employees receive lower overall protection is possible, but unlikely in the short term, given the broader cultural change needed to accept the US norms.
  • Trade and investment are good for employment growth and stability. The government will want to keep a level playing field with the UK’s European counterparts to ensure that vital relationships are maintained at this crucial time. One key area where it will want to display its good practice is in data protection. Realistically a single market deal may also mean the UK continuing to be subject to key EU legislation.
  • Subject to the above, eventually EU rights, or improvements of those rights, may reduce or end. We would not be surprised to see any reviews follow a similar format to the 2014 review of gold-plating of TUPE. Many will recall that in that case the government’s grand proposals were ultimately reduced to a few smaller, less significant changes. If the UK is not required to keep EU legislation in these areas as part of a broader deal, the government may review and make changes to the current position in a number of areas, such as: 1) harmonisation of terms following a TUPE transfer; 2) limits on bankers’ bonuses; 3) working time controls; 4) collective redundancy consultation; 5) agency workers’ rights; and 6) the absence of a cap on discrimination awards.
  • If the UK is not subject to the jurisdiction of the European Court of Justice, we may see our case law develop in a slightly different direction. This may mean a gradual parting of ways.

Imposing limits in the free movement of labour could make the UK a much less attractive destination for international businesses and skilled and educated migrants.
On balance, it is most likely that a future government will want to preserve the status quo at least in the short term. It is likely to look for opportunities for more fundamental and valuable changes as the dust settles.

Brexit…hunkering down for the long haul…what we know so far

Dr Eva Carneiro – happy ever after in the “tale of two employees”?

Dr Eva Carneiro, the former Chelsea first team doctor, who brought employment tribunal claims of constructive dismissal and sex discrimination against Chelsea and Jose Mourinho (respectively), is understood to have settled her claims for a confidential sum.

The claims settled on day two of the two-week trial, a day on which Dr Carneiro was due to give evidence. In opening submissions given on the first day of the hearing, Chelsea sought to portray Dr Carneiro as publicity hungry, self promoting and money grabbing. It highlighted that Dr Carneiro had already rejected an offer of £1.2 million to settle her claims. It also said that she could not expect to achieve those sums even if she was successful at tribunal. In their opening submissions, Dr Carneiro’s legal team told the tale of the “good employee” who was forced out of “the job of her dreams”, berated, sexually harassed and demoted, by the “bad employee”. They also placed blame firmly with Chelsea, who they said confirmed Dr Carneiro’s demotion and told her to “build bridges” with Mourinho, rather than looking into Mourinho’s conduct.

To succeed with a constructive dismissal claim Dr Carneiro would have needed to show a fundamental breach of her employment contract entitling her to resign and treat herself as dismissed. As well as focusing on the acts and omissions of Chelsea as her employer, Dr Carneiro’s legal team would have undoubtedly argued that Chelsea should have been held vicariously responsible for the acts of Jose Mourinho. These may have included Dr Carneiro’s well publicised allegations that Jose Mourinho called her a “daughter of a whore” in Portuguese.

In support of her claims of sex discrimination and harassment (and in addition to the above statement allegedly made by Jose Mourinho), Dr Carneiro was said to have been relying on a series of “sexist and derogatory” emails and text messages between Jose Mourinho and his backroom staff.

The cap on compensatory awards in unfair dismissal claims is currently £78,962 or 52 weeks’ pay if this is lower. While discrimination complaints are not capped, Dr Carneiro may have recovered more under the terms of a settlement than she would have been awarded at tribunal, had she succeeded with her claims.

Dr Carneiro is said to be relieved that she can now move forward with her life. No doubt Chelsea and Jose Mourinho (who was due to give evidence next week) are also feeling some sense of relief, if only about avoiding further bad press which has surrounded the case.

Dr Eva Carneiro – happy ever after in the “tale of two employees”?

Bored out of job

A Frenchman has hit the headlines for taking his former employer, Interparfums, to court after having an existential crisis because his job is too boring. Is this a joke? Non.

The term “burn out”, when employees collapse due to overwork and stress, is well known. However, this individual has accused his employer of something much worse – being bored. Or as the French press are calling it, “bore out”.

The claimant states that working for his employer was “a descent into hell” as he was given so little to do that he suffered from critical depression and became ashamed of being paid for doing nothing. Many people would say, “c’est bien” to being paid for doing minimal work. However, this individual has brought a claim for constructive dismissal and is seeking £282,000 in compensation and damages for suffering the insipidness of mind-numbingly dull tasks over a four-year period.

The main legal argument being pursued by the claimant’s lawyers is that he was intentionally side lined so that he would have no chance of promotion and become so bored that they could fire him without redundancy payments or any other compensation.

In the UK, to succeed with a claim for constructive dismissal, the employee must show that they were entitled to resign by virtue of an employer’s conduct. Essentially, there has got to be a repudiatory breach of contract on the part of the employer which is sufficiently serious to justify the employee resigning. Whether the French courts will sympathise with the claimant’s case, who knows, à suivre!

Bored out of job

Well heeled?

Today’s news headlines included the story of a receptionist sent home from her first day of work after refusing to wear high heels. When Ms Thorp arrived at work in flat shoes, she claims that she was told that she needed to wear shoes with a “2-inch to 4-inch heel” and was required to go and purchase something more suitable. People laughed when she asked whether this rule also applied to men and stated that this demand was discriminatory. Ms Thorp’s duties included escorting clients to meeting rooms. When she refused to go out and buy a pair of high-heeled shoes and questioned how wearing flat shoes would hinder her ability to carry out her duties, she was sent home without pay.

Ms Thorp was working at the offices of PwC, who stated that the dress code was not an internal policy, but that of Portico, a third-party supplier to whom it outsources its front of house and reception services to.

Legally, employers can discipline or even dismiss staff who fail to adhere to a request to follow reasonable dress codes, as long as the appropriate procedures have been followed, and the staff member has been given enough time to change or buy suitable clothes. It is also permissible for employers to have different dress codes for men and women, but the rules should be equivalent and should not be more rigorous for one group than another. If an employee can show that an employer’s dress code treats one sex less favourably than another, this may amount to unlawful sex discrimination.

Well heeled?

Insight: Team moves – snaring the poachers

A competitor poaching a team of employees can be devastating to a company’s ability to carry on business and service its clients. Below is a summary of key points to consider in relation to a potential team move.

Identification and prevention

The scenario: You employ a senior employee. They develop a close professional relationship with their team. The senior individual leaves your employment. Several members of the team resign shortly afterwards. You understand that they are all going to work for the same employer.

Read the full article here.

Insight: Team moves – snaring the poachers