October 4

Worker or self-employed? Employers take note of Uber’s predicament……

In the past few months, a series of legal cases have been brought by individuals claiming that they are workers (and therefore have workers’ rights) against companies attempting to classify them as self-employed contractors.

The main cases to hit the press have been against Uber and Addison Lee. These cases have all been decided in the workers’ favour – the individual has been held by the tribunal to be a worker not a self-employed contractor.

Why the explosion of these cases?

There is a general trend for employers to increase the flexibility of their workforce to cut costs.
Engaging the majority of the workforce on ad hoc, self-employed contracts is cost effective and efficient for a company. It can give its contractors as little or as much work as it wishes, and end the relationship without going through any procedures and with little risk of a claim against it.

Self-employed contractors have almost no rights under employment law. In particular, unlike workers, they have no right to a minimum wage or holiday pay, and these are the main rights that are sought by individuals.

Why did the workers succeed in their claims?

In the decided cases, the workers’ victories came down to two main issues:
1.. the companies have too much “control” over the way they work
2. the companies require them to perform the work personally, rather than being able to provide a substitute.

Although employment tribunals use a number of tests to decide whether an individual is a worker or self-employed, the “control” and “substitution” tests are two of the most important.

Control

In both Uber and Addison Lee, the employment tribunal decided that the contracts between the company and its drivers bore little resemblance to the way they worked in practice.

The tribunal therefore largely disregarded the contracts and looked instead at the reality of the working relationship.

In Uber, the company claimed that it was merely a technology platform, linking 30,000 drivers operating their own independent businesses. The tribunal rejected that deciding that the level of control exerted by Uber over the drivers was key to the tribunal’s decision.
The drivers had very little autonomy to determine the manner in which their services were performed and no chance at all to dictate its terms.

The level of control exercised by the company over the claimant in each case was held as incompatible with genuine self-employed status. The individual was an “integral part” of the company’s operations and “subordinate” to the company.

Substitution

The principle of substitution is the right of an individual to substitute another if, for whatever reason, they cannot provide the service or carry out the work. Therefore, a genuine self-employed contractor can usually substitute another worker to perform the contract. On the contrary, a worker or employee is obliged to provide their services to the company personally.

In both Uber and Addison Lee, it was clear that substitution was not a realistic possibility. The individuals were under an obligation to provide their services personally. Both companies would have considered it too risky to allow an unrestricted right to substitute another individual and at the very least would have wanted to exercise control to ensure that the service was provided in such a way as to be in keeping with its brand and standards.

The way forward for employers….

Employers will need to keep control to a minimum, both in the contract and in reality, to protect against a finding of worker status, rather than self-employed. The tribunals are increasingly critical of arrangements that disguise workers as self-employed individuals.

Against this background, it may be that, ultimately, employers will be vulnerable to a finding that their contractors are actually deemed to be ‘workers’ if they require their contractors to meet their standards and perform the work required of them, whether this is reflected in the contractual documentation or simply in the day-to-day working arrangements.

Therefore, employers should take care and reconsider how they classify those who work for them. If in doubt it will be important to make allowances for holiday pay and compliance with the national minimum wage – especially in light of the recent ruling that tribunal fees are unlawful because this could well see a rise in the number of claims lodged by workers in respect of their employment status.

October 4

How to manage annual leave: five common employer pitfalls

Mismanagement of annual leave can have a dramatic impact on a company’s business, as demonstrated by Ryanair’s cancellation of hundreds of flights after it admitted “messing up” the planning of pilots’ holiday. Where do employers commonly get annual leave wrong?

1. Not encouraging employees to take annual leave across the leave year
Allowing staff to build up too much annual leave and not spread out their holidays over the year can be a major problem for employers. This can occur where there is an excess of work to do or where a business is struggling – in either case employees may feel that they are simply not in a position to take annual leave at certain times during the year without putting their job at risk.

Employers should therefore encourage employees to plan and take annual leave. This will prevent the workforce from building up an excessive amount of leave to take at the end of the leave year which is always tricky for a business to navigate through. It will also ensure that employees take proper breaks through the year thus reducing the risk of increased absenteeism due to stress and other factors caused by over work.

Typically, the responsibility for monitoring annual leave is allocated to line managers, who should periodically check their employees’ annual leave balance and remind staff that they need to use the holiday up by the end of the leave year.

2. “Buying out” employees’ annual leave entitlement

An employer may be tempted to offer staff a cash substitute in return for giving up their annual leave entitlement, for example to solve a staffing crisis, complete a big project, or tackle a build-up of accrued but untaken holiday across its workforce.

However, it is unlawful to pay employees in lieu of their minimum statutory annual leave entitlement except on termination of employment. When an employee leaves a job part way through the holiday year he or she will be entitled to be paid for any accrued statutory holiday not taken at the date of termination.

3. Allowing employees to carry over excessive amounts of holiday

The general rule is that your basic statutory holiday entitlement under the EU Working Time Directive (four weeks of holiday) must be taken during the holiday year. Otherwise it will be lost.

The only exception is if you are unable to take your holiday because you are sick, injured, pregnant or on maternity leave. In these circumstances, you can carry forward your holiday into the next holiday year.

If you are entitled to more than the statutory minimum amount of paid holidays (in the UK all employees are automatically entitled to a minimum of a further eight days) then you may be able to carry the extra days forward – or at least some of them. This depends upon your contract of employment which should clearly state whether or not you are allowed to carry over accrued but untaken days holiday from one holiday year to the next, if so how many, and whether they have to be taken say within the first quarter of the next holiday year.

4. Allowing too many employees to take leave at the same time

One of the biggest dangers for employers is the knock-on effect on the business of allowing too many employees to take time off during particular periods, typically the summer or at Christmas.

Line managers can sometimes be reluctant to turn down employees’ holiday requests, particularly if an employee has already planned a trip, but they should be reminded that employers are not obliged to agree to a worker’s request to take holiday at a particular time, unless the employment contract provides otherwise.

Employers should have a clear policy on holiday requests (typically, a “first-come, first-served” approach). Line managers should be brave enough to turn down holiday requests (with the correct notice) when the timing of leave would cause the business difficulties.

5. Not paying employees the right amount during annual leave

In recent years, perhaps the single biggest employment law headache for UK employers has revolved around the calculation of holiday pay – namely the fact that it is no longer permissible to calculate holiday pay on the basis of an employee’s basic pay only.

Case law has established that pay during annual leave should now include other payments such as overtime pay (both compulsory and voluntary), commission, standby/call-out allowances, shift premia and travel allowances.

Employers need to decide on a sensible approach to holiday pay calculations, particularly the length of time used to calculate the average (with 12 weeks being a popular suggestion) and what allowances should be included (if in doubt, include it). A holiday pay miscalculation across the workforce could be costly in the long run.

Managing annual leave: do’s and don’ts for line managers

1. Do encourage staff to submit dates for their holiday as far in advance as possible.
2. Do review regularly whether or not employees have taken, or at least planned to take, some of their holiday leave.
3. Do remind employees periodically how much annual leave they have outstanding.
4. Do ask any employee who has not taken any holiday or submitted any holiday dates by for example the middle of the holiday year to nominate holiday dates as a matter of urgency.
5. Do ensure that holiday leave is planned in such a way that the department has adequate cover at all times.
6. Do be proactive in the management of holiday.

7. Don’t leave the matter of holiday to chance.
8. Don’t take the view that it is up to each individual to decide whether or not he or she wants to take holiday.
9. Don’t wait until near the end of the holiday year before reviewing whether or not employees have taken all their holiday.
10. Don’t give in to employees’ requests for pay in lieu of holiday.
11. Don’t make staff feel guilty about taking holiday.

October 4

Employment Tribunal fees are unlawful and should be scrapped……

The decision made on 26 July 2017 by the Supreme Court has been welcomed by employees and trade unions, but has understandably caused employers a lot of concern.

Prior to July 2013, it was “free” to bring an Employment Tribunal claim. That changed when fees were introduced in July 2013 requiring claimants to pay a fee of up to £1200.

The impact of the fees was that it deterred many claimants from making a claim, which was positive news for employers. Before fees were introduced, the average number of cases taken to tribunal was about 5,000 a month; this fell to about 1,500 a month after fees were brought in.

Supreme Court decision

1. The Court decided that the fees have the effect of preventing access to justice.
2. There was “a dramatic and persistent fall in the number of claims brought” and fees were the most frequently cited reason why employees decided not to make a claim.
3. The Court decided that the fees are indirectly discriminatory against female claimants, because a higher proportion of women bring the type of claims for which the higher fee is payable (discrimination claims).

With immediate effect, fees will no longer be charged.

What does this mean for employers?

1. Employers who welcomed the fee system when it was introduced will be nervous about what happens now. Whilst we do not know exactly what will happen next, it is unlikely that fees will be abolished completely but any new fees introduced will have to be significantly lower.
2. It is very likely that there will now be an increase in claims because, as things stand now, anyone who has been treated unlawfully or unfairly at work will no longer have to pay to take their employer to court.
3. Since fees were introduced, employers might not have taken a careful approach when they released staff and might have made bolder decisions in relation to how they dealt with workplace disputes, counting on their employees to be put off by the fees and not make a claim. Following this judgment, employers might want to act more cautiously moving forward, certainly until we know what the new system is going to be.

August 6

The curse of the mobile phone in the office….

Employees using their personal mobile phones at work has topped a list of what employers consider to be the biggest productivity killers in the workplace. We have all been in the middle of a meeting when an employee answers his mobile phone. In a busy office there is a blast of annoying, impossible-to-ignore ringtones. An employee chats on his mobile with his child about school, while another discusses dinner plans with her boyfriend.

Fifty percent of employers surveyed nationally named mobile phones and texting as the main culprit preventing work getting done. Unsurprisingly, employees agreed that the personal use of technology is one of the leading culprits behind unproductive activity at work. In the same survey, one in four workers admitted that, during a typical workday, they will spend at least one hour a day on personal calls, emails, texts or browsing non-work related websites.

Mobile phones have recently been referred to as “the cigarettes of this decade”. People are addicted and just as cigarettes are banned from some places, more and more organisations are looking to take a stronger stance against mobiles adopting policies to govern their use in the office.

On the flip side, mobile phones can be an easy way to reach employees after normal working hours. The employer can take advantage of the fact that an employee can be contacted outside of work on their mobile phone to talk through an issue or deal with an emergency.

So, any policy governing the use of mobile phones needs to be sensitive to both sides of the debate.

Below are some ideas to help govern their use:

Limits on phone usage

Many companies place limits on personal mobile phone use as follows:

· mobile phones cannot be used during company time except during breaks
· limit calls to real emergencies
· be respectful to others and keep phones on vibrate so loud ring tones don’t disturb others
· mobile phones shall be turned off or set to silent or vibrate mode during meetings
· if you are expecting an urgent call, check whether it is acceptable to take a call and leave the room for the call and keep it brief.

Text messaging

Companies usually need to address the quickly growing culture of text messaging. Text messages can be an insidious distraction, with employees engaging covertly in personal conversations during work. In meetings, text messaging can be seen as the modern equivalent of note passing and are evidence of the fact that the texter’s mind is not solely on the matter in hand.

Many companies have chosen to ban text messaging as part of their mobile phone policy.

Company mobile phones

Many companies prefer to issue company mobile phones to employees who should be using a mobile phone for work -then employees are asked to have their personal mobile phones turned off or stored away during working hours. While this solves one problem, it also opens up others! The sorts of rules governing company mobile phones are as follows:

* Company mobile phones may be used for private calls. All personal calls will be at the employee’s expense and employees will be sent an itemised bill for their personal calls. The Company may deduct the sum owed from the employee’s salary;

OR

* The Company will provide employees with a mobile phone for use in connection with the Company’s business. This is to be used exclusively for work-related phone calls during working hours. Whilst the Company will tolerate essential personal phone calls concerning employees’ domestic arrangements, excessive use of the mobile phone for personal calls is prohibited.

OR

* Company mobile phones may not be used for private calls.

Breach of this policy will be treated as misconduct which may result in a company mobile phone being withdrawn or disciplinary action taken.

In a nutshell……

Whether mobile phone usage is a problem in your workplace or not, at the moment, it is worth considering adding a policy governing their use to your staff handbook. A clear policy on the use of personal mobile phones in the workplace gives you, as the employer, the ability to tackle issues that arise and discipline accordingly.

June 9

Most common employer breaches of the ACAS Code of Practice……..

There will always be times when an employer has to take action and discipline an employee. Mistakes are very often made along the way, especially if the employee in question is dismissed and then submits a claim for unfair dismissal.

During any unfair dismissal claim, the tribunal will examine the procedural fairness of the dismissal and in so doing will take into account the “ACAS code of practice on disciplinary and grievance procedures”. If the employee wins their unfair dismissal claim, the tribunal may increase the award of compensation by up to 25% if an employer unreasonably fails to follow the code.

It is important therefore to note the following areas where employers commonly make mistakes:

1. Not warning the employee of the possible consequences of the disciplinary action

From the outset, the employer must tell the employee the possible outcome of the disciplinary action. In order to give them a fair chance of defending the allegation properly. It should not come as a surprise to the employee later on that dismissal is a possibility.

2. Not setting out the nature of the accusations clearly to the employee

The employer should explain the alleged misconduct clearly and should, throughout the disciplinary process, be consistent in what it is accusing the employee of. New allegations that come to light during the investigatory stage can be added to the process, but any disciplinary sanction must be imposed only in respect of allegations that were properly investigated and brought to the employee’s attention as part of the proceedings.

3. Not furnishing the employee with relevant evidence against them

The employer should provide the employee with all the evidence in advance of the disciplinary hearing. Ideally, the evidence should be provided when the employee is invited to the hearing, or at least far enough in advance for them to be able to prepare a defence.

4. Not operating a system of warnings where appropriate

In some cases, the alleged misconduct will be so serious that summary dismissal for a first offence will be justified. However, in cases of minor misconduct, a series of warnings before dismissal will be appropriate.

5. Not allowing the employee to be accompanied at a disciplinary hearing

Although it is a statutory right, the ACAS code reminds employers of the requirement to allow the employee to be accompanied at a disciplinary hearing. The right to be accompanied arises when a worker who is invited by his or her employer to attend a disciplinary or grievance hearing makes a reasonable request for a companion to attend the hearing.

6. Relying on evidence from one particular source with no corroborative evidence

There may be limited circumstances where one individual’s evidence is enough to lead to a disciplinary sanction, but an employer should always look for more. Employers should be alert to the problems of relying on one person’s evidence and always look for corroborative evidence.

7. The absence of an adequate appeal stage

The right of appeal is fundamental to ensuring natural justice. Employers should give the employee the opportunity to appeal when the outcome of the disciplinary hearing is communicated to them. Appeals should be unbiased and not be a “foregone conclusion”.

8. Failure to keep clear records of the whole disciplinary process

To stand the best chance of successfully defending employment tribunal claims, employers must keep clear records of each stage of the disciplinary process. It is too easy for claimants to find inconsistencies in the evidence if witnesses have to rely purely on memory.

9. Delays in dealing with disciplinary issues

Most cases should be dealt with in a matter of weeks and unexplained delays in the disciplinary proceedings will always be frowned upon by tribunals. However, more complex or difficult cases will inevitably take longer.

10. Having the same person deal with the whole disciplinary process

A common failing found in tribunal claims is that the same individual is in charge of the disciplinary process from start to finish. Ideally, different people should carry out the investigation, disciplinary hearing and appeal stage, although this will not always be practicable, particularly for small employers.

May 2

Six tips for effective probationary periods….

A probationary period is commonly used when an employee joins the organisation and is a useful way of assessing performance. A probationary period can last anything from three months to a year, but typically it is six months. The employer can also reserve the right to extend the probationary period should the need arise by stipulating it in the contract of employment, however, this should not be the norm and should only be agreed if there are special factors that justify it.

No matter how long the Company decides the probationary period should be, it must be clearly communicated to the employee at the outset of their employment.

Despite the presence of a probationary period in most contracts of employment, very often they are not used correctly. I therefore offer six tips for implementing them effectively.

1. Probationary periods can help avoid performance issues later

A probationary period can focus the minds of the employer and the employee to make sure that the new employee is given the support necessary to be able to perform to the required standard.

The employer should discuss the following with the employee within their first week:-
· What they are expected to achieve in their job during the probationary period.
· The core values of the organisation and behaviours expected of the employee.
· The standards of regular attendance expected from the employee.
· Any development required to help the employee to do their job.
· How any problems with performance will be addressed.
· When the probationary period review meetings will take place.

During the probationary period a series of formal review meetings should take place between the new employee and their manager to discuss areas of strength, where improvement is needed, any training requirements and whether or not the required standard is reached.

2. Do not wait until the end of the probationary period before addressing performance issues

Employers should hold regular review meetings with the new employee during the probationary period to give feedback and listen to any concerns the employee may have. Any problems during the probationary period should be discussed ‘in the moment’ rather than waiting for the next review meeting. The aim is to bring about a sustained improvement in performance and to ensure that the employee has had sufficient opportunities to achieve this. If there are performance issues, a plan should be put in place to help the employee to improve.

The probationary period can be extended in appropriate circumstances, but employers should avoid having to extend the period simply because issues have not been dealt with earlier.

3. Consider contractual rights during the probationary period

While probationary periods do not affect employees’ statutory rights, it is open to employers to provide for different contractual rights for employees during their probationary period. For example, the employer could withhold certain contractual benefits like gym membership or life assurance until the employee has successfully completed the probationary period.

4. Termination before the end of the probationary period

If it is clear that the employee is not suited to the job, termination before the end of the probationary period is an option. Employees should be given a fair opportunity to reach the required standard of performance and conduct during the probationary period, but in some situations it will be clear that the employee will not be able to do so, and dismissal before the expiry of the probationary period may be appropriate. The employee will be entitled to notice, or a payment in lieu of notice, in the normal way.

5. Fair dismissal

Full disciplinary procedure is not required when dismissing but employers should still follow a fair dismissal procedure.

It is unlikely that an employee on a probationary period will have the two years’ service required to claim unfair dismissal. However, it is important to note that an employee may have the right to claim discrimination or automatic unfair dismissal from day one of their employment. Employers should, therefore, ensure that they follow a fair dismissal procedure and be able to show evidence of this if the reason for the dismissal is challenged.
The employer must ensure that it follows any contractual disciplinary procedure.

6. Take action to dismiss employee or extend the probation before the probation period has expired

If the probationary period expires without the employer taking action to dismiss the employee or to extend the period, the employee will be presumed to be confirmed in the role, and will therefore be entitled to any extended contractual notice period that applies on passing probation.

April 25

How to handle an under performing employee….

Employees who are not performing to the standard that may be reasonably expected need to be managed. Ignore them at your peril! A manager may be impatient to move them out of the organisation, however, there is a balance between supporting the needs of the business, managing potential legal and reputational risks and running a proper process that gives the employee every chance of performing in the role – or at least giving them the opportunity for them to see for themselves that they are not performing.

Making life difficult

Many employers consider that the normal HR processes for performance management are too long and too employee friendly. The employer is convinced that the employee will never work out and does not perceive the need to put them through a process (in which they may have to invest time) to tell them what they already know.

Some employers avoid the use of process and instead just make life difficult for an employee, in the hope that they will get the message and leave. This is a risky approach given the potential for a constructive dismissal claim and an employer should be dissuaded from such actions.

Increasingly, however, HR professionals are often left trying to defend their performance management processes, even though they have significant sympathy with the views of the business.

Fix it sooner rather than later

What is key is the need to address underperformance as soon as it becomes apparent. The vast majority of underperforming employees have never performed particularly well, they may be given the benefit of the doubt for an extended period after joining and by the time HR become involved, the business has already lost patience.

Where HR takes an increasingly proactive approach, catching up with line managers on a monthly basis until it is clear that their new hires have landed well, underperformance is able to be tackled almost immediately and well before the business has become frustrated.

Fit for purpose

Is the performance management process that you use fit for purpose? While any performance management process cannot be a sham one, most processes can be rebalanced to help employers move far more quickly towards an exit. Having appropriate performance targets in place, coupled with timely feedback, usually speeds up any exit discussions whether formal or informal.

The other key point to remember is that employees in their first two years can be exited, in most instances, more easily. It is unlikely to be necessary to place an underperforming employee with less than two years’ service in the same performance management process as those longer serving employees. Given the cost, both financial and in management time, of recruiting, it is always wise to have some process to address underperformance, but for those employees with less than two years’ service it can be less rigorous.

All that employers need to be aware of, in exiting employees without a process (or a lighter process) where they have less than two years’ service, is whether there are any protected characteristics that the employee may have to avoid risk of a discrimination claim.

Protected conversations

For those employees with more than two years’ service, the choices are a performance management process or, perhaps, the use of protected conversations which allow the employer to raise the possibility of a termination without the risk of a claim.

This can work well in many cases, but where the employee says “no”, it can often make any subsequent performance management process more difficult, given that the employee knows there is an intent to exit them from the company.

Summary

In summary, these points are important to bear in mind:

* Do not allow concerns about legal risk to prevent effective management of poor performance.
* Provide clear, prompt and constructive feedback where an employee is underperforming.
* Address any barriers to effective performance.
* Set a standard for the employee to meet and allow a reasonable opportunity for improvement.
* Invoke a formal procedure where the employee fails to improve.
* Issue a formal warning if appropriate and monitor the employee’s progress.
* Hold a performance dismissal hearing where the employee fails to improve.
* Consider redeployment as an alternative to dismissal.
* Consider whether or not dismissal is appropriate.
* Keep in mind the option of a settlement agreement.
* Put extra effort into helping an employee reach the required standard if there has been a failure to address underperformance in the past.
* Revert promptly to the formal procedure where an improvement in performance is only temporary.

February 15

Rules for the office romance…….!

It’s the 14th February, and love is likely to be in the air. And seeing that we spend 90% of our day with colleagues within our organisation, chances are that falling in love in or around the office environment is highly likely and is happening now more frequently than ever.

Here are a few tips for budding office lovebirds:

Don’t look up or down
One scenario even more potentially disastrous than dating a colleague is a relationship that crosses the command chain. Fancy having an affair with your boss? Then get ready for a career brick wall if it goes wrong. Similarly, bosses should be extremely careful about the legal implications of a relationship with someone further down the food chain.

There is a caveat here: statistics suggest that people who start a relationship with their boss are more likely to end up marrying them, perhaps because both parties realise just how much is at stake.

Loose lips sink ships
If both employees are at the same level in the company, then the romance should be kept as low-key as possible; an office can be unsettled by rumours and gossip around the water cooler. Also, consider what you put out on social media, especially if you have work colleagues who can read your timeline. If you don’t want to answer awkward questions, don’t give people ammunition.

All workers are equal
There is little an employer can do about a budding relationship. But, as an employee, make sure you treat everyone equally. Just because the new love of your life is sitting five yards away, doesn’t mean they’re always right about work-related decisions. Leave your private life at home, and maintain a sense of professionalism at work.

Not in the kitchen, please
PDAs (also known as public displays of affection) are a no-no in the office. No one wants to walk into the kitchen to find you two squeezed up against the microwave while your lunch goes nuclear. Also, never use emotional language – a relationship is private. If you start an argument or row based on something that has happened outside the office, it can have a catastrophic effect on staff morale and therefore the company’s bottom line.

Over and out

There might come a time when your relationship ends, and you may need to talk to your boss about this. This can be tricky and something which, frankly, your employer probably doesn’t need. Always remember that your boss cannot side with either party if your affair is over; they’ll have to maintain discretion and impartiality.

What both staff and employers need to set out from the very beginning is this: we’re all adults and we understand these things happen from time to time, but there are lines that shouldn’t be crossed. Just as you trust your colleagues to drive the company forward, and use their common sense and initiative to implement procedures and plans, you need to trust anyone you might get involved with romantically to behave themselves at work.

Oh….and please, don’t do anything dodgy on the photocopier.

February 8

The benefits of an ageing workforce……

Older employees are an overlooked and underutilised skill and resource. Here’s how to make the most of them in your business:

1. Don’t assume older people want to retire. You may personally long for the day when you can give up work to do nothing, but remember that others may not. Some people find work rewarding and stimulating and it gives them a sense of purpose. Others need to work for financial necessity. Don’t make the mistake of assuming that your dream is their dream.

2. Don’t assume they are past it. Put aside any outdated ideas you might have about what old people are like. People over the age of 50 today are an entirely different generation to their parents and grandparents. They are vibrant, energetic and have a lot to give to the workforce through their skills and experience built up over many years.

3. Talk to them. Don’t be nervous when discussing future planning and retirement with older people. Ask them what they would like to do and talk about how that might fit in with the plans you have for the business – it is worth considering phased retirement schemes for example, which can be a good option for both sides. And while you’re at it, ask their advice on how they would like to be managed and supported. If you treat the whole experience as a learning curve for both of you, you may come up with some extremely helpful answers which will be useful for dealing with other older employees.

4. Tap into their knowledge. Use their experience to your advantage by setting up mentoring schemes. Older workers can pass on what they know to younger colleagues, who in turn can give their own insights into new approaches to work. And don’t assume older people are technology-illiterate either. They can be just as good at using new technology as anyone else.

5. Don’t patronise them. Don’t talk down to them and don’t constantly make references to the fact that they are from a different generation. Just because they remember a time before Google existed doesn’t give you a licence to make jokes about ‘the olden days’ in every conversation.

6. Don’t discriminate. Be very careful not to discriminate against older workers in the way that you allocate tasks, or promote, or indeed anything, as you could end up in court facing an unfair discrimination claim. And clamp down immediately on any discriminatory behaviour or remarks by others in the office. Remember that the government abolished the default retirement age of 65 two years ago.

7. Provide training. Older workers might still have another 15 to 20 years left in the workforce, so don’t skimp on training because you are concerned it might not be worth it. It will.

8. Count the advantages. Older workers are more likely to have grown up children than small ones so are less likely to need to be absent for childcare reasons, or to need maternity or paternity leave. They are also less likely to turn up to work tired and hungover after a big night out. Think about it. They could actually be the most reliable workers you will ever have.

December 9

Avoiding the perils of social media at the Christmas Party

The growing use of social media adds the most significant peril to the known dangers of the office party. While the DJ is still teeing up the last track of the night, Facebook and Twitter may already be humming with material that may cause a business far more profound harm than even the worst excesses of the pre-social media era.

Smartphones in the hands of drunk employees is rarely a good idea, but there’s real potential for boisterous staff to cause their employers embarrassment by posting inappropriate images to social media. Lots of people are now connected to customers and clients via Facebook and Twitter, and others post details of their jobs on their profiles.

It’s important for employers to clearly state in advance that what happens at the Christmas party should stay at the Christmas party. Trying to take action afterwards without having made the policy clear can bring its own problems if aggrieved staff take legal action for what they might feel is unfair treatment.

A ‘twitterstorm’, like its meteorological counterpart, blows up unpredictably and can cause devastating damage. There are a frightening number of criminal and civil wrongs which can be committed in 140 characters or less.

Here are just some of them:

Defamation and trade libel: Hospitality businesses – for very good reason – keep a close eye on their social media presence. A simple update such as “Should never have had the salmon! Been ill all night! #OfficeParty” could spark off others weighing in with tales of horror about the venue in question, and it may all end up in a damages claim.

Breach of the Data Protection Act: Uploading photographs to Facebook or Twitter may be part of a good night out for many, but other people may have good personal reasons to want to keep their images off social media, particularly when looking a bit worse for wear. For example, people involved in acrimonious custody disputes or personal injury claims could suffer serious prejudice by an ill-chosen ‘candid’ snap, taken out of context

Section 127 of the Malicious Communications Act: This prohibits “sending by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”. The prosecution of Paul Chambers – who unwisely tweeted a joke threat to blow Robin Hood Airport sky-high if it didn’t “get its act together” – shows the broad scope of the section. Public sector organisations in particular need to take care.

Discrimination: Anyone bringing a discrimination claim based on a hostile work environment is likely to find a rich vein of evidence in material posted on social media. ‘Laddish banter’ is a phrase which should strike terror to the heart of every HR professional. Offensive comments posted under the influence of alcohol will still be there the next day, and office parties are the worst environment for bringing out such material.

Harassment and stalking: Posting suggestive comments on someone’s Facebook page or persistently tweeting when they’ve indicated no further interest may well fall foul of the Protection from Harassment Act. So, too, do ‘upskirt’ photographs and other forms of ‘sexting’ if uninvited and unwanted.

Is your business at fault?

In addition to the potential damage to their reputation, organisations are considered to be vicariously liable for their employees’ actions when those take place in the course of their duties or reasonably ancillary to those duties. An office party is a function sufficiently closely tied to an organisation’s business to make vicarious liability a real risk.

How should businesses protect themselves?

As ever, the starting point is a well-drafted employment contract and employee handbook. This needs to contain social media policies which not only tackle employees’ use of ‘official’ social media accounts, but also their own personal Twitter, LinkedIn, Facebook and other accounts.
Furthermore, in advance of the office party, specific effort needs to be made to remind employees of the behaviour expected of them there, and that expectations of proper behaviour at the venue also extend to behaviour on social media before and after the party.

This should include:

• Circulating a memo referencing the social media policy together with information about the party itself
• Defining what the organisation considers ‘proper behaviour’, including warnings about various legal concerns, such as the Malicious Communications Act
• Stating whether there’s a policy on circulating photographs taken at the venue, and if so, what it is. The policy should either be ‘no photographs’ or ‘no uploading without consent of all people involved’. However, no matter what the policy is, it needs to be clearly communicated together with the consequences for violating it.

We hope that we haven’t completely killed the Christmas spirit and we wish you a very Happy Christmas and a peaceful New Year!

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