May 5

Social media and its role in dealing with malingerers…..!

Managing sickness absence is rarely a straightforward task and dealing with someone that you suspect is not genuinely ill has always been very tricky.

From the colleague whose weekend of hard partying regularly translates into a “stomach bug” on Monday morning, to the workmate who conveniently develops a migraine whenever a deadline looms, they are in every office. However, while managers are always keen to present their suspicions about malingerers, obtaining credible evidence to back up their suspicions is challenging which makes taking disciplinary action for misconduct very difficult.

Step 1: Identify and assess potential evidence

The first step when dealing with suspected malingerers is to identify and capture available evidence to support the suspicions. An employer who has evidence that an employee is being dishonest by claiming to be off sick when he or she is not, may be able to discipline or dismiss for misconduct.

However, mere suspicions and rumours will not suffice to establish misconduct and credible evidence needs to be obtained – something that has become easier with the burgeoning of social media over recent years as it has the potential to provide a generous source of possible evidence. Data protection and human rights laws do, however, mean that employers need to be careful if, and how, they use this type of evidence.

If evidence from social media is presented to the employer, perhaps via another employee, the employer can use it in the same way as it would any other anecdotal evidence or employee tip off. For example, in a recent case a colleague printed off Facebook entries showing that the employee was attending London fashion week, auditioning models for her own agency and choreographing a fashion show, whilst signed off sick from her work. The tribunal held that the employer was allowed to use this evidence in their disciplinary investigation, and the employee was sacked for gross misconduct.

The credibility of the evidence retrieved from social media will need to be tested in the usual way – for example, did the tip-off come from an employee with a grudge to bear, has the information been taken out of context and are the dates of posting accurate?

Many employers also usually reserve the right to monitor work email accounts but a recent case has highlighted that if information gleaned this way is to be used, then employers need to make sure they act in a proportionate way, balancing an individual’s right to privacy and the employer’s business interests and considering if there is a less intrusive way of achieving the employer’s aim.

Step 2: Review the evidence – is it capability or conduct?

The tribunal recently, helpfully, reiterated for employers that “pulling a sickie” is a misconduct, rather than a capability, issue. If your evidence of malingering looks robust and credible then you should be able to start a disciplinary process for misconduct.

However, a lack of evidence of dishonesty does not mean that an employer is powerless to challenge an employee they suspect is not really as ill as they claim. People will often continue to take unwarranted time off where they believe their absences are passing unnoticed.

Employers can address this by ensuring that return-to-work interviews are carried out following each occasion of absence and encourage line managers to probe further (or push for medical evidence) if faced with evasive or inadequate answers.

For example, you could:

– Ask questions (involving the employee’s GP or occupational health if necessary) about the typical symptoms and development of the health condition and whether the individual is affected in an atypical or unusual way.

– Raise discrepancies between the individual’s stated condition of health, their presentation at interview and any previous reports or documentation.

– See if the individual is co-operating with medical evaluation and treatment (reluctance to do so can be a sign of malingering) and, if not, is there any good reason for this?

Such probing needs to be done carefully. Too blunt an approach, without back-up evidence, carries with it the risk of a claim of a breach of the implied term of mutual trust and confidence (and potential discrimination). However, making it clear to the employee that their repeated absences are not going unnoticed can do wonders for attendance.

Step 3: Give evidence of misconduct, but do not jump the gun

Where an employer believes it has evidence of dishonest behaviour, it is important not to jump to conclusions. Remember that employees do not have to be bed-bound, or even at home, in order to be unfit for work.
An employee posting pictures of himself on holiday or doing sport or other leisure activities may still be genuinely unwell. Many health conditions do not improve as a result of lying in bed – indeed some conditions, for example, mental health issues or bad backs can improve with exercise. Therefore, it is important to carry out an investigation, as you would for any other allegation of misconduct.

Spotting malingerers – potential signs

– Patterns of absence, such as the same day each week.
– Triggers for absence, such as being invited to a disciplinary meeting.
– Reluctance to provide medical evidence or attend appointments.
– Posts on social media.
– Tip-offs from colleagues.
– Reports of activities that seem inconsistent with ill-health, for example: undertaking other work; going on holiday; doing DIY or sport.

Two recent cases highlight this point. In one a community midwife, signed off work due to a knee condition, continued in her second job which was desk-based, one evening a week, and at a time when she would not have been working as a midwife, so she was not being paid twice for the same hours. It was concluded as perfectly acceptable for her to have carried on in the second role, while signed off sick from her role as midwife, so her dismissal on those grounds was unfair.

On the contrary, a hospital consultant was signed off from her NHS role, but still continued to work in a private hospital, while claiming sick pay from the NHS. The tribunal found her behaviour constituted gross misconduct.

Step 4: Remember to follow your procedures

It is imperative to follow a fair procedure however cut and dried the evidence appears. Before disciplining or dismissing the malingering employee for misconduct, you need to follow your own procedures and the Acas “Code on discipline and grievance”, as you would do in any other disciplinary scenario.

You will need to put the evidence to the individual, hear their explanation and consider if that explanation requires further investigation; in this kind of situation, medical evidence may well be needed. You also need to consider the individual circumstances of the case and any mitigating points, such as length of service and previous disciplinary history, as well as how similar cases have been dealt with in the past.

Managing malingerers will never be easy, but the rise of social media and people’s seemingly unquenchable enthusiasm for sharing their lives through this has brought with it a useful source of evidence for employers. Used correctly, it may prove the previously unprovable and may encourage employees to think twice before phoning in with that Monday morning “stomach bug”.

February 14

The importance of supporting dyslexic employees…..

Starbucks has lost a disability discrimination case after it wrongly accused a dyslexic employee of falsifying documents when she had simply misread numbers she was responsible for recording.

The equality legislation is vague on whether dyslexia constitutes a disability. It defines a disability as “a physical or mental impairment which has a substantial and long-term adverse effect on … normal day-to-day activities”. However, it does go on to suggest that under stressful conditions people with dyslexia can be seen to suffer such an impairment. Thus employers should assume that a dyslexic employee may well be protected as disabled.

All organisations must make reasonable adjustments for those with disabilities, including dyslexia, under the Equality Act 2010 to ensure that a disabled employee is not seriously disadvantaged in performing his or her job. Employers should also have appropriate policies in place and make sure that discrimination is avoided in the recruitment process and the work environment.

The employee in this case had made her employer well aware of her dyslexia but they had failed to make reasonable adjustments for her disability, more particularly her reading difficulties, and had discriminated against her because of the effects of her dyslexia. The tribunal also found that the employee had been victimised by her employer and there appeared to be little or no knowledge or understanding of the equality issues.

This case emphasises how important it is for employers to try and understand the effects that an employee’s disability has on that particular employee and whether the employer can take any reasonable steps to ensure the employee is not disadvantaged in the workplace. This case should also serve as a bit of a ‘wake up’ call for employers as dyslexia affects as many as one in ten people, although many have not been formally diagnosed, and thus appropriate allowances and adjustments must be made if an employer is to avoid falling foul of the equality legislation.

February 14

Are employers able to take a robust approach in cases of work related stress?

Occupational stress in the workplace is on the increase. The latest estimates from the Labour Force Survey show that in 2014/15 stress accounted for 35% of all work-related ill health cases and 43% of all working days lost due to ill health.

It is an issue for employers, not only because of the prolonged absences that can result from stress-related illnesses – 9.9 million working days in 2014/15 – but also because of the potential liability of an employer if workplace stress results in a psychiatric injury and it was foreseeable that an injury might result from pressures at work.

Just how easy is it for an employee to prove that it was reasonable for the employer to have foreseen the psychiatric illness caused by the work place stress and therefore be liable for it? Not very easy according to the recent High Court case of Easton v B&Q plc…..

In B&Q the court was given the task of determining whether the employer had been in breach of its duty of care for one of its employees who was suffering from a work related psychiatric illness. The employee became unwell due to occupational stress and was away from work for five months. He returned on a phased return programme and later relapsed due to depression.

A key point from the outcome of the case centres on the issue of foreseeability. As an employer, if you know or ought reasonably to know that an individual is suffering or at risk of suffering a work related illness, you are obliged to:

* make enquiries;
* take necessary steps to conduct a risk assessment;
* provide support for the individual.

However, as an employer you are entitled to assume that someone can withstand the normal pressures of the job unless they suggest otherwise.

In this case Mr Easton, the employee, did not specifically raise during any meetings or appraisals that he was struggling to cope with the demands of the job. In addition, he had previously had more stressful jobs and coped well. Further, nothing about him gave anyone any clue he might succumb to psychiatric illness and he didn’t complain as he wanted to impress senior management.

An employer can only be liable for an illness caused by work if it was reasonably foreseeable. In this case because it was not brought to the attention of B&Q they were not deemed to be liable. However, caution should be taken by employers with this judgement – it doesn’t always have to be brought to the employer’s attention – it is extremely important to note that there is often a fine line between genuinely not knowing that something is likely to happen and turning a blind eye to clear signals that it might.

Factors for employers to consider when there are concerns over an employee who may be suffering from work related stress are:

* Have there been any complaints by the employee in question, or others?
* Is there a known history of stress related illness in the role? Or employee?
* Are you meeting regularly with employees and documenting appraisals and meetings?
* Is there support in place for early intervention for someone who is suffering from stress related illness?
* Is there an established process and policy in place for an employee to raise concerns?
* Are your managers trained to notice the signs of stress?
* Do you have a counselling service you refer employees to if required?

Employers have a clear duty of care for the mental health and well-being of their employees and must therefore act where concerns are highlighted. However, and as importantly, employees must also be responsible for looking after their own mental health and must seek advice and support when needed in the workplace.

This case highlights the importance of making employees aware of the channels through which they can raise concerns and the need to flag up those concerns clearly and repeatedly to ensure their employer is fully aware of the situation. It does also make clear that employers are not expected to be telepathic and serves as a useful reminder that the threshold for foreseeability of psychiatric injury and breach of duty is high.

Many employees will experience periods of being over worked and stressed at work – very few go on to suffer psychiatric illness as a result. An employer’s obligation to act arises when the indications are plain enough for any reasonable employer to realise he should do something about it.

September 10

Is your business ready for Rugby World Cup 2015?!

The 2015 Rugby World Cup kicks off on 18th September 2015 here in the UK. It is due to last for around six weeks with the final being played on 31 October 2015.

It is vital that you plan early to reduce the impact on staffing and productivity levels. Many employers are expecting a spike in annual leave requests and absenteeism. This is especially so if you operate evening shift patterns as England’s group stage games all kick off at 8pm.

Whilst you could encounter problems with over enthusiastic employees who are heading out of work to catch the games (which will primarily be shown in the afternoons and in the evening), you should also recognise that the tournament provides an opportunity to take advantage of high morale and improve levels of employee engagement.

Potential issues:

There are a number of potential issues for you to consider in the run up to the main event:

– too many employees may want to take annual leave on the same day;
– higher levels of unauthorised sickness absences;
– abuse of internet policy;
– discrimination; and
– harassment.

In light of these issues, consider the following steps you could take to reduce these risks well in advance of the start of the World Cup.

Plan in advance:

– instal a TV for all key games – not just the England matches
– harness enthusiasm for the tournament through themed team activities
– remind staff about the organisation’s sickness absence policy
– set some ground rules to cover behaviour throughout the tournament
– initiate flexible working
– accommodate non-rugby fans

Set out expectations

The first step is to ensure that all company policies are up to date, are clear, set out the consequences of any breaches and have been issued to all of your employees, to ensure no-one falls foul. The key policies which should be considered are:

– Holiday Policy;
– Sickness Absence Policy;
– Unauthorised Absence Policy;
– Equal Opportunities Policy;
– Internet and E-mail Usage and Monitoring / Social Media Policy; and
– Disciplinary Policy.

By doing this, you can ensure that employees are clear as to what is acceptable, and what is expected of them. This will make it easier for you to deal with anyone that crosses the line.

How to tackle absences

During such high profile popular sporting events, which tend to last over the course of several weeks, statistics show that employee absences cost UK businesses millions of pounds per day, with most people pulling ‘sickies’ on the day after a key match.

To try to avoid unplanned absences, encourage staff to take annual holiday leave if they want to watch the rugby and enjoy the associated festivities. Be careful to ensure that it is made clear to employees that requests for leave are not guaranteed to be approved and holiday requests will be granted fairly.

Further, make it clear to employees in advance that unauthorised absences during the tournament will be subject to closer scrutiny and they may have to participate in a return to work interview. This will hopefully deter employees from calling in sick unless they are genuinely sick.


You could offer your employees the opportunity to work flexibly around games, for example, allowing them to work through lunch breaks, or come into work early and then leave early in order to watch the game.

There is huge goodwill to be gained from accommodating flexible working requests, as it is a great way to thank and engage staff. To ensure that nothing slips through the net, it should be made clear that any such arrangement will need to be pre-approved in order to ensure that adequate cover is available.

All offers of flexible working must be made available to all employees, regardless of whether they want to watch the rugby. Limiting the offer to rugby fans only is likely to alienate certain employees and cause tension in the workplace.

Watching at work – keeping an eye on the ball

Fortunately, for many employers, most popular matches are scheduled to kick off during the evening, which will limit some of the disruption to the working day, although there are several which start mid-afternoon. However, the impact may be more extensive amongst employees who regularly work late shifts, night shifts and weekends.

Consider showing the rugby at work or even making it into an event that all employees are welcome to attend. Remember to be alert to the fact that not everyone will want to be involved and that all employees should be given the same benefits as employees supporting the England team and their ‘home nations’.

Dealing with alcohol

Many of the tournament’s matches will take place during the evening and it is likely most rugby fans will be enjoying the game with a drink in hand. You need to make it clear that it is unacceptable to come to work suffering from the effects of alcohol the next day such that they are incapable of performing their duties properly. Again, make sure you have an up to date alcohol policy and consider sending a memo reminding staff of its contents.

Internet and Social Media Policies

You may find that employees spend a significant amount of time on the internet, getting score updates or general news about the tournament. If a large number of employees stream a match to their desktops all at the same time there may be an impact on your network, as well as on general productivity levels. Therefore, set out a clear policy about what will and will not be tolerated.


Try and get your staff excited and engaged by competing in a Rugby World Cup fantasy league – the very best way to encourage a friendly and inclusive atmosphere!!

September 9

Kicking the habit….should you allow employees to use e-cigarettes in the workplace?

There has been a substantial rise in the use of electronic cigarettes since smoking in public areas, including the workplace, was banned in 2006. The organisation Action on Smoking and Health (ASH), estimates that around 2.1 million adults currently use electronic cigarettes. This leads to a dilemma for employers about whether to permit employees to use electronic cigarettes at work.

What the law says

E-cigarettes are battery powered devices designed to replicate smoking behaviour without the use of tobacco. They turn nicotine, flavour and other chemicals into a vapour that is inhaled by the user. The exhaled vapour can be seen and some products also have a light at the tip which illuminates when the user inhales.

Smoking in enclosed or substantially enclosed workplaces in England has been prohibited since 1 July 2007 (under the Health Act 2006) in order to reduce the health risks associated with tobacco. In view of the fact that e-cigarettes do not use tobacco it is very unlikely that e-cigarettes are covered by the smoking ban in England, although other countries such as Canada, Denmark and Australia have taken the step to ban them.

Should employers therefore allow employees to use e-cigarettes in the workplace?

Unfortunately, there is no conclusive medical opinion on the safety of e-cigarettes to assist employers in making this decision. A 2008 review by the World Health Organisation found that there has been no rigorous, peer reviewed studies which conclude that the e-cigarette is a safe and effective nicotine replacement therapy. The British Medical Association (“BMA”) has advocated for stronger controls covering where e-cigarettes can be used in order to protect others from being exposed to e-cigarette vapours and to ensure their use does not lead people to believe it is acceptable to smoke or reinforce the “normalcy” of smoking behaviour. In light of these concerns the BMA believes the existing smoke free legislation in the UK should be extended to include vapour from e-cigarettes. Certainly, e-cigarettes are to be licensed as a medicine in the UK from 2016 in response to concerns about their lack of regulation.

Employers also need to be aware of their common law and statutory duties to protect the health and safety of their employees. Some employees may argue that their employers should allow them to use e-cigarettes in the workplace as a supportive measure to assist them in giving up smoking which should in turn lead to a healthier lifestyle. However, employers may be concerned that such devices could upset other employees, particularly if they are pregnant, trying to give up smoking or are concerned about the vapour from e-cigarettes.

A further consideration for employers is whether using e-cigarettes in the workplace fits with the professional image of the organisation and, if permitted, could be seen to “normalise” smoking. Although there is uncertainty about the harmfulness of the vapour, employees may, at the very least, find the vapour distracting.

Whilst using e-cigarettes in the workplace is not prohibited and employers do not have to ban the use of e-cigarettes, they equally do not have to agree to e-cigarettes being used in the workplace, and therefore must decide what approach best fits with the ethos of the organisation.

Practical steps for employers

If you do decide to prevent employees from using e-cigarettes in the workplace then we recommend taking the following steps:

• If you do not currently have a no-smoking policy or a drugs/alcohol policy then introduce such policies and include details of your approach to e-cigarettes in them.
• Alternatively, amend any existing no-smoking policy to include details of your approach to e-cigarettes such as a provision expressly banning the use of e-cigarettes in the workplace, in company vehicles and at any client locations where your employees are working. A recent tribunal case, the first vaping case to be heard, clearly highlighted how important it is for employers to ensure that the use of electronic cigarettes or “vaping” is included in their no-smoking policy.
• Clearly explain in your policies that failing to adhere to them may result in disciplinary action.
• If you already provide a non-enclosed workplace area for conventional smokers then also consider providing a separate non-enclosed area for employees to use e-cigarettes.

June 18

Understanding PILON: Payment in lieu of notice

PILON is a payment made to an employee when employment is terminated without notice, instead of the employee working through a notice period and receiving pay in the normal way. It is different from ‘gardening leave’, in which the employee is still in employment during the notice period and is paid during that period, even though he or she is not present at work.

When does the termination date fall?

There’s some confusion about when the termination date falls in a PILON situation. To avoid disputes, it’s best to make this clear in the contract, whether it is:

1. the date notice of termination is given, or
2. the date the PILON is actually made, or
3. the end of what would have been the notice period.

Some employers prefer to give notice of termination and make the PILON at the same time so that there are no misunderstandings. Either way clarity in the contract is key to eliminating misunderstanding.

What are the rules on benefits in kind, bonuses and commissions?

The usual position is to provide, in the contract, that the PILON payment will cover basic pay only and that there will be no payment in respect of non-cash benefits, bonuses or commissions during the notice period and thus they will not need to be reflected in a payment in lieu.

However, if the PILON clause does not deal with such benefits and remains silent on the issue, the default position is that the employee should be compensated for the loss of any benefit under the contract for the duration of the notice that should have been given. Thus the PILON payment would include all and any benefits to which the employee may be entitled.

It is therefore important to be clear in the contract exactly how the PILON payment is calculated.

Does a PILON payment have to include holiday entitlement?

In general a PILON payment need not reflect holiday that would have accrued over the notice period, had the employee worked it. The reason for this is that, firstly, the employment legally comes to an end on the date of termination. Secondly, although holiday would have accrued during the notice period, it could also have been taken by the employee before the contract ended and there is an assumption that the employee would have performed the contract in the way most advantageous to him/herself.

Therefore, in general, the payment in lieu of notice need not reflect holiday that would have accrued beyond the actual date of termination (ie during the time that would have been the notice period), unless the contract provides otherwise. However, in practice, employers may decide to include this in the payment in lieu to avoid any dispute over the point.

Again, clarity within the contract is of paramount importance to ensure all parties are clear as to what the PILON incorporates.

Taxation of PILON payments

If the employer makes a payment in pursuance of a PILON clause, it will be a payment due under the contract and will fall to be taxed in the same way as other contractual benefits given to the employee.

If, however, there is no contractual right to a PILON and an employer terminates a contract without proper notice and simply makes a payment to the employee in lieu of the notice period, then that payment can be paid tax free. This payment is not a payment under the terms of the contract, which would be taxable, but instead is an advance payment of damages for breach of contract. Such a payment is tax free up to £30,000.

In conclusion

In dismissal situations there is plenty of scope for confusion surrounding pay, notice and termination of employment. Mistakes could be costly, and when it comes to payment in lieu of notice, having an up-to-date and clearly expressed contract could be the difference between a mutually respectful parting of ways and engaging in a costly process in the tribunal.

February 1

How much should employers be paying workers for holiday?

The Employment Tribunal made a decision on holiday pay at the end of 2014 which has the potential to affect any employer that requires its workers to work overtime – both guaranteed and non-guaranteed compulsory overtime worked by a worker should be included when the employer calculates his or her holiday pay. Importantly, employees can also make claims for backdated holiday pay.

The decision confirms that overtime required to be worked by workers under their contract constitutes part of their ‘normal’ pay – thus compulsory overtime should be included when calculating holiday pay. ‘Overtime’ in this decision related to non-guaranteed overtime, that is, overtime which the worker is required to work if so asked by the employer but which the employer does not guarantee to provide. Strictly speaking, voluntary overtime (overtime which the worker is not contractually obliged to perform) is not covered by the decision. However, given European case law, it seems very possible that voluntary overtime will be included in calculating holiday pay going forward.

Whilst not specifically dealt with in this case, other elements such as commission, shift allowances and any other payment the employee is normally paid for doing his job (as opposed to reimbursement of expenses) will fall within the Tribunal’s definition of “normal” pay – namely, has it been paid for a sufficient period of time to be considered part of that employee’s normal remuneration. It is also worth noting that at this stage bonuses are unlikely to be included as, for the most part, they are defined as discretionary and unlikely to form part of “normal” remuneration.

The impact on employers

Firstly, the ruling only applies to the mandatory four week holiday entitlement provided for by the European Working Time Directive, which for full-time workers is 20 days. Technically, it does not apply to the additional 1.6 weeks given to workers in the UK or for any additional holiday entitlement provided for by the employee’s contract of employment although it may be simpler, administratively, to avoid different rates of holiday pay for different parts of an employee’s holiday entitlement.

Also, a time limit has been placed on claims that can be made by employees for back pay. Employees who, as a result of the ruling, have been underpaid historically may have a claim for unlawful deductions from wages. The employee must bring a claim for unlawful deductions in the Tribunal within three months of the date of the deduction or, where there has been a series of deductions, within three months of the last deduction. However, the Tribunal held that only deductions made within three months of each other count as part of a series.

To put this into practice, if an employee was paid holiday pay in April last year and then again in November they would only be able to make an unlawful deductions claim in respect of the November payment as there is more than three months between the deductions.

Practical changes employers need to make…..

Technically, now the ruling has been made, employers should start to factor in regular overtime into holiday pay from now on. Calculation of holiday pay will continue to be by way of reference to a “week’s pay” which means that where a worker’s pay fluctuates on each pay date, the calculation of a week’s pay will be the average amount the worker was paid in the 12 weeks immediately preceding the holiday period.

Practically, employers need to communicate with their payroll providers or investigate whether their current payroll systems are able to deal with this change. Employers will need to consider whether it is simpler to pay at the enhanced rate for all holiday pay going forward or whether there is the facility to differentiate between the four weeks under the Working Time Directive and the additional holiday an employee receives under the UK statutory leave and any contractual entitlements.

A further consequence is that, with costs for all employers increasing, it may be more cost effective longer term to use agency staff rather than to encourage overtime to be worked by employees.


Finally, it is important to note that the Tribunal has given permission for its decision to be appealed and so we may not have a definitive decision for some time. If employees do issue Tribunal claims for unlawful deductions then it is likely that these will be suspended if and until there is a further decision made on appeal.

November 17

Watch those Christmas party tweets…..the social media risks in the festive season!!

As the Christmas party season approaches, many will begin turning their attention to the office party. While some may focus on concerns about the venue and cost-cutting measures, perhaps a more worthy concern is whether we can any longer assume that what happens at the Christmas party will stay at the Christmas party.

With social media and recording devices in most people’s pockets these days, people’s behaviour at a party can now be posted for a global audience in the blink of an eye. An organisation’s reputation can be tarnished and people’s careers damaged by spur-of-the-moment recording and posting of office party activities to the online community through social media sites such as Facebook and Twitter. Aside from the reputational risk, an employer will also be concerned that information and pictures posted online in the public forum will result in discrimination or bullying claims.

A key issue is how proactive organisations are in terms of setting boundaries for social media use in and around work-related activities. Some of the questions managers need to ask themselves as the festive season approaches are:
1. Does the organisation have policies for the use of social media in the workplace and work situations?
2. Does the organisation have policies for posting work-related comments on social media?
3. Are these policies clearly articulated to the workforce?
4. Has appropriate training and education been associated with the development of these policies?

Say cheese!!
The proliferation of smartphones means that there are an awful lot more party pictures and videos recording exactly what is happening at the Christmas bash – they have a way of taking on a life of their own when posted online.

* Make sure that your policies reflect the fact that employees should not engage in activities, either in or out of work, which might bring the company into disrepute including making derogatory comments or posting inappropriate or drunken pictures on social media sites.

* In addition, policies should clarify that posting negative or inappropriate pictures could constitute discrimination and/or bullying.

* Well before employees get their glad rags on, circulate details of any relevant polices, drawing attention to the fact that these policies apply to what goes on at any Christmas party and afterwards, irrespective of the fact that such gatherings may take place out of the office.

* Recent cases have highlighted the importance of having well drafted and clear policies in place when it comes to justifying a decision to discipline or dismiss an employee for posting inappropriate information or making derogatory comments on social media sites. If employees know what standards are expected of them, and the implications of failing to comply with these standards, then it will be far more difficult for them to bring grievances or claims in response to disciplinary sanctions imposed.

Of course you want employees to enjoy themselves but if you reiterate that workforce expectations on professional conduct still apply, they may think twice about posting that photo of them sat seductively on the boss’s lap.

She said what…?!
The prevalence of smart phones also pose a similar but different problem – gossip. A few glasses of mulled wine could be all that it takes for an employee to spill company secrets or badmouth clients or colleagues during a Christmas event on Twitter or Facebook. Additionally, employees may use social media to gossip about things afterwards.

* Once again, it is crucial that policies are clear about what is expected of employees if employers want to be able to discipline and/or dismiss without facing potential claims, and also protect employees from harassment or discrimination.

* Employers should ensure that employees understand what constitutes confidential information, and the fact that disclosure of such information is prohibited at any time including through social media sites.

* They should also be aware that posting confidential information or negative comments about clients or third parties is also prohibited.

* Policies prohibiting discrimination, harassment or bullying should expressly refer to social media.

Have you seen his Facebook status?!!
Production levels often drop in the weeks leading up to Christmas but what should you do if an employee claims that they are ill but Facebook tells you that they are too hung over to come into work, or are off doing some last minute Christmas shopping? Employers should take care not to jump to conclusions. As with any potential disciplinary matter, a thorough investigation is essential before any disciplinary sanction is imposed. A failure to do so could result in grievances and/or claims.

Employers should also be aware that monitoring employees’ activity on social media without their knowledge could infringe their right to privacy. Employers will need to consider whether this is the case and, if so, be able to justify the interference on the basis that there was a legitimate reason to carry out the monitoring and that it was proportionate.

Too much red tape spoils the party……
There is no reason why your employees should not be able to enjoy the Christmas period without you having to wrap it up in lots of red tape and policies. If you make sure that employees understand their social media obligations, you can still see off the year with a festive bang.

However, managers should be encouraged to lead by example, adopting an appropriate management style both at the party and afterwards. If managers see inappropriate material posted on social media websites and do nothing about it then employees may think that is alright for them to post gossip or unpleasant images.

The combination of age-old celebrations and the new information age can be a dangerous mix. The key point is there is still time to address these issues before the party season gets into full swing!

Not meant to be bah humbug – make sure you all enjoy!!

November 4

TUPE…….in a nutshell!

The purpose of TUPE is to protect employees if the business in which they are employed changes hands. Its effect is to move employees and any liabilities associated with them from the old employer to the new employer by operation of law.

Why do you need to know anything about TUPE?

TUPE applies every day to an enormous number of different business transactions and it is essential that employers of all sizes understand what employment liabilities can arise. TUPE can apply when employers:

* sell or buy part or all of a business as a going concern;
* outsource or bring a service back in-house;
* grant or take over a lease or licence of premises and operate the same business from those premises.

What do you need to know about TUPE?

To protect your business from claims, you need to understand:
* when TUPE is likely to apply;
* what TUPE means legally;
* what you have to do to comply with TUPE and the penalties for failing to do so;
* what other steps you can take to protect your business from the effects of TUPE.

When is TUPE likely to apply?

In essence, TUPE applies where there is a transfer of an economic entity which retains its identity. In determining whether this has happened, the courts take into account factors such as:
*the type of undertaking being transferred;
*whether any tangible assets (buildings, moveable property etc) are transferred;
*whether any intangible assets are transferred and the extent of their value;
*whether the majority of the employees are taken on by the new employer;
*whether any customers are transferred;
*the degree of similarity between the activities carried on before and after the transfer;
*the period for which the activities were suspended, if any.

What does TUPE mean legally?

Employees who are employed in the undertaking which is being transferred have their employment transferred to the new employer. Employees can refuse to transfer (or “opt-out”), but depending on the circumstances of the case, they can lose valuable legal rights if they do.

Employees therefore have the legal right to transfer to the new employer on their existing terms and conditions of employment and with all their existing employment rights and liabilities intact. The new employer steps into the shoes of the old employer and it is as though the employee’s contract of employment was always made with the new employer.

Any dismissals will be automatically unfair, where the main reason for the dismissal is the transfer or a reason connected to the transfer – there is a defence but it is narrow in scope and can be difficult to rely upon. The new employer is required to take on the employees on their existing terms and conditions of employment and is prohibited from making any changes to them – unless the aforementioned defence applies. This often makes it difficult, if not impossible, for incoming employers to harmonise terms and conditions of employment of staff after a TUPE transfer.

What do you need to do to comply with TUPE?

(1) Outgoing employer must inform and consult with staff
Affected employees must be consulted on the transfer, any measures proposed, and on changes or proposals for change following the transfer. A failure to inform and consult may result in a claim to the tribunal which may award up to a maximum of 13 weeks’ pay per affected employee.

(2) Outgoing employer must provide employee liability information to incoming employer
Written details of the transferring employees, together with all associated rights and liabilities that will transfer, must be provided not less than 14 days before the transfer. A failure to comply with this duty may result in a claim to the tribunal for compensation which will be assessed with regard to the losses suffered with a minimum award of £500 per employee.

A failure to comply with TUPE could therefore expose employers to claims large enough to undermine the entire transaction.

What other practical steps can you take to protect your business from the effects of TUPE?
Although there is nothing anyone can do to prevent TUPE applying (it is not possible to contract out of TUPE), there are steps which both the outgoing and incoming employers can take to divide up TUPE liabilities contractually between them.

Whilst under TUPE employment liabilities connected to the transferring employees will always transfer to the incoming employer (so employee claims should always be made against the new employer), the parties can still agree contractually to divide up the liabilities between them in a different way. This ought to be done by means of contractual indemnities. If this is something you think would be useful for your business, you should always take specialist legal advice.

TUPE in insolvency

Finally, TUPE is relaxed to protect incoming employers where the exiting employer is insolvent. The liability for redundancy, notice and some other payments to employees will not transfer to the incoming employer. Also, terms and conditions of employment can be changed (without the noted businesses, thereby safeguarding employment, where the inherited liabilities are not so onerous.

August 11

How to avoid the pitfalls of giving a reference…..

Writing a reference for an employee’s new employer can land you in legal hot water – there are rights and obligations you need to consider when providing a reference which will ensure that you stay safe but are fair.

What can go wrong?
If you give a reference, you have a duty to the employee and the new employer to take reasonable care to ensure it is true, accurate and fair and that it is not misleading.

If you provide a bad reference that you can’t substantiate, you run the risk of your employee suing you for damages if they didn’t get the job, or suffered some other financial loss, because of it. In a worst case scenario, they could even bring an action against you for defamation or discrimination.

The new employer could also claim damages against you if you give a glowing reference for an employee who has not in fact been satisfactory, and that person goes on to perform badly in their new job.


1. Giving no references
One option is to refuse, as a matter of policy, to give references for any employee but this is unusual and failure to give a reference, without any explanation, can also imply that you have had problems with the employee. This could give rise to claims that you have discriminated against them and they could also argue that you have broken the term of mutual trust and confidence that is implied in every employee’s contract of employment. So, if you have a policy of not giving references, respond to each request for a reference with a specific statement that it is not your policy to give them, to avoid misunderstandings.

2. Giving the bare facts
Many employers provide only bare facts – the position(s) held by the employee, salary and other benefits, sickness record and commencement and termination dates. State that this is your policy on the reference you give, so that the new employer does not read anything into the fact that you have not provided fuller details.

3. Giving a full reference
Most full references include the bare facts, plus key responsibilities, an assessment of the employee’s performance and views on their personal qualities relevant to the positions held.

The duty to take care to be true, accurate and fair, and not to be misleading, means you should avoid:
• Failing to respond to specific questions in a request for a reference without explaining why.
• Omitting key information that a new employer would expect you to disclose.
• Organising the information in a way that would give a reasonable person a wrong inference or impression of the employee.
• Saying that an employee is suitable for the role advertised – you do not know what the job entails. If you must say this, qualify it by saying it is your opinion only.
• If an employee’s performance has been poor or they were dismissed for serious misconduct, refer specifically to the problems experienced with the employee (as well as any positive points, in the interest of balance). It is dangerous to leave them out if they are material. A bad reference is permissible, provided that it is not malicious and that you took reasonable care to ensure that the information is true – for example, by investigating any matter giving rise to the bad reference.
• If an employee has been dismissed, ensure that the statements made in the reference tally with the reasons given for the dismissal.
• If the employee is senior enough, agreeing the wording of their reference with them may be part of a settlement agreement.

Avoid inconsistency – giving a reference in one case and not another, or giving only a factual reference to one employee and a full reference to another – as this could give rise to a claim of discrimination by a disgruntled employee. It is best to establish a policy that states whether you will give references or not and, if you do, who may give them and what they should contain.

Disclosure of the reference
If your ex-employee asks to see the reference, you do not have to disclose it. However, the new employer has to if you have consented to its disclosure it is ‘reasonable in all the circumstances’ that the new employer should do so.

Take advice before giving any reference if it is important to you that your employee should not see it, or parts of it that you consider confidential – at the very least you should make it clear to the new employer that you do not consent to disclosure of the reference, or the confidential parts of it, to the employee.

If the new employer is obliged to disclose the reference, generally they should take care not to disclose any part of it that relates to another person.

Disclaimers excluding liability for the accuracy of the reference are of limited effect – they will protect you only if they are reasonable. Attempts to exclude liability for a statement that can reasonably be expected to be something an employer should know, is likely to fail. That said, you may wish to include a disclaimer in your references as a ‘belt and braces’ measure.

Third parties
All references should be marked ‘private and confidential’, to make it clear that they are intended only for the person to whom the reference is given (the new employer for example), and must not be disclosed to, or relied on, by any third party – whether by your staff giving the reference, the new employer or, if they obtain sight of a copy, the employee to whom it relates. Some employers include a specific statement in the reference that no third party is to rely on it.

Always take legal advice if in doubt!

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