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.