Facebook, Bebo and Myspace have become part of our day to day vocabulary.  With such popularity, it is inevitable that they will also become the source of many more employment disputes.  Rather than waiting until the inevitable occurs, make sure you have clear guidelines and that all of your staff are aware of,  and understand them.

Examples that have already hit the headlines are the Australian who called in sick but in reality had a hangover, and then rather foolishly announced this on his  on his Facebook page which his manager then read; and a British girl who invited work colleagues to be ‘friends’ and criticised her employer on line.  Both were subsequently dismissed.

As an employer, what do you need to put in place to protect your business?

Your policy
Establish a policy for your firm and put it in your staff handbook.  As an employer you have the right to block such sites, but if this does not suite the tone of your business you may be happy to only restrict usage to specified break times.  Also make it clear what work email addresses can and cannot be used for.

You also need to make it clear to employees that, even in private life, they cannot write or make comments that are to the detriment of your organisation.  If serious enough, this may constitute gross misconduct and you have the right to instigate disciplinary procedures and even dismiss individuals. 

Policy documents need to be reasonable.  Make it clear what you expect from your employees, be it in the pub, on line or in the staff canteen.  You won’t necessarily know what is said in the canteen, but it is easy to see what is written on Facebook; don’t fall into the trap of being overly vigorous in policing your policy, just because you can.

Monitoring usage
Employers have the right to monitor use of the internet, but you must ensure employees know in advance that you intend to do so.

Use of social networking site in recruitment
You may wish to use any available information in the selection process for a job.  However, be cautious that you do not leave yourself open to a claim for discrimination.  Firstly, do you know that the data is accurate or even written by the person you are considering and secondly, if you claim to be an equal opportunity employer, having more information about one candidate than another could breach good HR practice. 

On the whole, if you have a rigorous selection and recruitment process, social networking sites should not really add any additional relevant information and it is probably safer not to rely to such sites.

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A guide to the TUPE regulations

Time and again we are asked by employers about TUPE rules and regulations have composed a quick guide to the regulations.  Don’t forget to also read the amendments to TUPE, covered in our Employment Law Update below, resulting from the Employment Act 2008 coming into force.

TUPE is an acronym for “Transfer of Undertakings (Protection of Employment) Regulations 2006”.

This guide briefly describes the TUPE Regulations 2006.  TUPE is a complex area, so it is essential to seek legal advice for individual circumstances.

Purpose

The TUPE Regulations are designed to protect the rights of employees when a business or undertaking, or part of one, is transferred to a new employer.

Transfers covered by the Regulations

The Regulations apply to “relevant transfers” which cover the two broad categories of business transfers and service provision changes. 

Generally, TUPE has been found to apply to:

• Sales of a business, or part of it, by a sale of assets
• Where all or part of a sole trader’s business or partnership is sold or transferred.
• Where two companies cease to exist and combine to form a third
• A change of licensee or franchisee
• Contracting out of services
• Changing contractors

However, TUPE does not apply to:

• Transfers by share take-over because, when a company’s shares are sold to new shareholders, there is no transfer of the business - the same company continues to be the employer;
  Transfers of assets only (for example, the sale of equipment alone would not be covered, but the sale of a going concern including equipment would be covered)
• Transfers of a contract to provide goods or services where this does not involve the transfer of a business or part of a business;
• Transfers of undertakings situated outside the United Kingdom.

What happens to employees during a transfer of undertakings?

If TUPE applies, all terms and conditions of work and continuity of employment are preserved.  This applies to all employees employed immediately before the transfer; and those who would have been so employed had they not been unfairly dismissed for a reason connected with the transfer. 

All employees automatically become employees of the new employer, unless they inform either employer that they object to being transferred.

If an employee feels they have been unfairly dismissed because of a transfer, they can appeal against the decision using the organisation’s internal procedures.  If this doesn't resolve the issue, the employee may complain to an employment tribunal.  Employees with less than one year’s service cannot usually present claims under TUPE as employment protection rights have not accrued.

Defences to the application of TUPE

A dismissal of an employee because of the transfer will be automatically unfair unless there is an economic, technical or organisational (ETO) reason as a basis for a refusal by the prospective transferee to take on the employees of the transferor.
Examples include:

• Economic reasons - where the demand for output has fallen to such an extent that profitability of the entity is unsustainable without dismissing employees.
• Technical reasons - where the transferee wishes to use new technology and the employees employed by the transferor in the entity do not have the requisite skills.
• Organisational reasons - where the transferee operates at a different location and it is not practical to transfer employees.

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As a heads-up, the following legislation is planned for 2009, but dates are yet to be set. We will send you updates as the information becomes available.

The Equality Bill will clarify the new legislative framework on discrimination.

At a European level, there is the new Temporary Workers Directive.

The new Apprenticeships, Skills, Children and Learning Bill 2008/09 will introduce the right for employees to request time away from their duties to undertake training.

Employers will be obliged to consider seriously these requests, but will be able to refuse where there is a good business reason.

Extension of right to time off for public duties — date to be confirmed.

The right to time off for employees serving in a wider range of civic roles is extended. It is proposed that the right to time off for public duties under s.50 of the Employment Rights Act 1996 should be extended to cover roles such as members of probation boards; members of court boards; and youth offender panel members. It is also proposed that roles in the housing sector, such as board members of registered social landlords and tenant management organisations, should be covered by time off entitlements.

Employers prevented from including tips in minimum wage

During 2009 (date to be confirmed) National minimum wage legislation is amended to stop employers using tips to top up staff pay in order to meet the national minimum wage. Currently, employers can count service charges and gratuities processed through the payroll towards their obligation to pay the minimum wage.

Repeal of dispute resolution
procedures

The Employment Act 2008 repeals the statutory dispute resolution procedures set out in the Employment Act 2002. Click here to read our briefing document in full or click here listen to the podcast.

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Employment Tribunals

Holiday pay has been added to the list of jurisdictions that an employment tribunal chairman can hear alone.

Under separate legislation, new Regulations make procedural changes to tribunal practice, including default judgments, electronic communications, withdrawal of proceedings, and Stage 1 equal value hearings.

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Revised Acas Discipline and Grievance Code of Practice comes into force

The revised statutory Acas Code of Practice on disciplinary and grievance procedures is introduced. Where there is a breach of the Code of Practice, a tribunal can increase or decrease any award made by up to 25%. To view the Code on the Acas website click here.

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Increased penalties for failure to pay national minimum wage introduced

The Employment Act 2008 provides increased powers for the enforcement of the national minimum wage with new calculations for arrears of the national minimum wage have been outstanding over a period of time.

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Statutory sick pay increases

Statutory sick pay increases from £75.40 to £79.15 per week.

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Health and Safety Information for Employees

The amendments allow the Health and Safety Executive to approve and publish new health and safety law posters and leaflets.  As a result employers displaying the old posters and leaflets will not be required to update them for a period of 5 years, as long as the ‘old ones’ are readable and provide up-to-date information about contacting the HSE. 

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New TUPE Regulations 2009 come into force...

TUPE has been amended as a result of the repeal of the statutory dispute resolution procedures.  It requires the transferor to supply information about employees (including disciplinary or grievance procedures) taken by an employee within the preceding two years. 

The effect of these Regulations is that the transferor is required to provide information in circumstances where the new "Acas code of practice on disciplinary and grievance procedures" applies, rather than where the statutory dispute resolution procedures apply.

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More information on all these issues can be found at these sites:

www.hmrc.gov.uk

www.acas.org.uk

www.opsi.gov.uk

www.berr.gov.uk

- Waldrons Merry Hill office
- Thursday 21st May
- To book your place click here

The training course:
Even if you don’t currently have plans to reduce your work force, with the seismic nature of recent economic turmoil, it is useful to ensure you fully understand the law and what you can and cannot do.

This short training course will explain the law, the HR process and the interpersonal skills behind successful management of redundancy and short time working.

The course will be conducted as a workshop and by necessity numbers are limited, so please register your interest early.