Employees and Social Media – what obligations are placed on employees by virtue of employment?

In statistics released recently, nearly a 1/3 of employers have had to regulate the use of Social Media websites by their employees, concluding in disciplinary measures. This can only advocate that company’s are not aware of the risks to their business by encouraging employees to use Social Media for business purposes. How can the risks be managed?   

Employers supporting employee’s to develop client associations via sites such as LinkedIn is a typical example of where potential problems can arise. The Copyright and Rights Database Regulations 1997 state that databases formed at work are strictly the employer’s property, unless an express agreement has been made stating the contrary. These regulations go as far as implying that email addresses held in employees account are also protected.
Where does the law stand with LinkedIn contacts, on a third party server not backed up by the employer?
Questions have been raised about whether an employee can retain their LinkedIn contacts after leaving a company and use for their own purposes? Normally client lists are deemed as confidential information, under statue, but in this instance social media is venturing into the unknown. Unless a specific clause exists within the employee’s contract which addresses a restriction, there is nothing to stop the employee from abusing this type of system post employment.

These are the type of issues the Human Resources Departments should be forecasting, whilst introducing measures to prevent potential problems.

Solutions could include:

• Making ‘non dealing’ covenants for employees to sign.
• Imposing contracts and termination agreements that insist staff delete client contacts from LinkedIn post employment.
• Include a condition within the employee’s contract which requires them to delete their entire LinkedIn account when their employment ceases with the company.

How to manage abuse of social media in the workplace
Communicating the requirements for appropriate use of Social Media to employees, both at work and out of work, is vitally important for businesses, if they are to avoid many of the social media issues that are currently arising.
A disciplinary hearing for the misuse of social websites can be impossible, if the company has not put into action guidelines and remedial procedures to identify what is/is not permissible under obligation of employment with the company.

A recent article ‘keeping pace with social media in the workplace’, from the law firm DLA Piper suggests,

• Companies are recognising the advantages of existence on social media sites.
• Most enterprises are promoting their staff to use social media sites for publicizing their business.
• However employers are unsuccessful in safeguarding themselves from the disadvantages of social media usage.
• 21 per cent of staff in the last year has had proceedings taken against them for unsuitable/offensive information shared on social media sites.
• 31 per cent of staff had been disciplined for inapt information posted on social networking sites about the business or their colleagues.

These problems identify a need for HR professionals to support the process of staff using social websites in a work capacity. This can be achieved by providing/implementing guidelines on the company requirements, by making the obligation of the employee clear and identifying terms of a breach in procedure. This would have to be supported by a disciplinary process to make the guidelines ultimately effective.

Interesting Facts

• Fewer than one in ten employers have policies in place to control employee use of social media.
• 65% of employers encourage their employees to use Social Media for business purposes.
• One third of employers have considered disciplinary action as a result of misuse by employees on Social Networking sites, causing problems to the business and work colleagues.

A survey from ‘Clearswift’ a security firm found that, organizations blocking admittance to social websites has risen from 9 per cent in 2010 to 19 per in 2011. These figures distinguish a need for employers to keep up with online developments in consideration for their businesses.

The abuse of social media sites at work, costs businesses billions of pounds each year. This can mean staff logging on and off sites such as ‘Face book’ whilst they are at work.

If the damage to reputation was severe enough, the employer could in theory also sue for compensation.
Most employers are ignoring these issues until they are faced with a problem, which could damage their reputation and lead them to consider sueing for compensation.  Over 3.5 million of people in Britain have a ‘Face book’ page.  . Social networking is making all employers personal lives more public, with details now instantly searchable and potentially stored online forever.

We can assist a business by providing a suitable policy, which allows members of staff to use social media sites in an appropriate way, whilst avoiding online bullying and harassment and allowing a businesses to feel confident that is reputation will be guarded.

Contact us today:  Tel: 01280 817341      Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Employees on sick leave can carry over their accrued holiday to the next calendar year – but does this happen automatically?

Where an employee is unable to take their annual due to sickness and it is not possible to reschedule this in the current holiday year, the worker is able to carry it over to the following year. The question is currently – does the employee have to request to carry their unused annual leave forward, to be entitled to do so?

Two European Court of Justice (ECJ) rulings in 2009 (Pereda v Madrid Movilidad SA) and (Stringer v HMRC), ruled as part of the Working Time Directive, that workers who are sick during a period of pre-arranged annual leave are entitled to defer the leave until a later date after they have recovered, noting that this could involve carrying forward the leave to the next holiday year.  

This decision confirms that UK Tribunals are giving thought and consideration to ECJ rulings. This ruling is however particularly notable because it conflicts with the UK Working Time Regulations, which prohibit the carrying over of holiday from one year to the next year.

The keys points derived from this decision were as follows-

• Employees accumulate 5.6 weeks of holiday per year even if they are off sick at work.
• Staff cannot be expected to take holiday if they are on sick leave.
• If a member of staff cannot take their annual leave because of sickness they are entitled to transfer it to the next holiday year.
• The UK’s Working Time Regulations are contrary to that of the Working Time Directive.
• In the most recent cases, heard by the Employment Appeal Tribunal (EAT) rulings have offered opposite views on whether employees should make a request before being allowed to carry annual leave forward to the following holiday year.

Further case law (‘Fraser v St George NHS Trust’) will need to determine whether an employee needs to request to carry any unused annual leave forward to the next holiday year as part of the UK Working Time Regulations. Thus the employer has no obligation to pay the annual leave unless the employer actually requests it. The employer also has no obligation to inform employees that they are entitled to this leave.  If a request is not made the employer is under no obligation to pay accrued annual upon termination of employment.

What stance should you as an employer take?
It is notable that the Government is currently in discussions regarding amending the Working Times Regulations.  They are considering allowing the carryover of unused holiday in certain circumstances. If this revision does come into effect it would allow for holiday pay to be carried over when an employee has been absent on sick leave.

It would therefore be advisable for employers to be careful and keep documentation of statutory holiday accrued by those members of staff who have been absent due to sickness and not been able to take their annual leave.

If you need any clarity or advice we can help on how to proceed with these issues please contact us.

Tel: 01280 817341      Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

What defines whether an employee is self employed or employed?

The distinction between being employed or self employed is not as simple as many of us think. HM Revenue and Customs promote the fact that we do not have the right to choose, however this is contrary to public belief.  The difference between the two working relationships is found by analysing the work that is being completed and the amount of control being placed upon the worker(s).
There is not always a clear answer as to whether a worker will be seen in the view of the tax office as being employed or self employed. HM Revenue and Customs have published a leaflet, (ES/FSI) which contains numerous questions on how to test the basis of the relationship.

Areas covered include:

• The level of integration with the employers business.
• Profit and the risk of loss.
• Ultimate control of the work.
• Usual conditions within the industry.
• Intention between the parties.
• Provision of materials and equipment.

This criterion is not only concerned with tax legislation, but also concerns employment law.
In times of recession some businesses acquire former employees as self employed contractors. If done correctly this can be a dramatic tax saving strategy. H M Revenue Customs will only allow a self employed status when:

• The employer does not control what the worker does, they act independently.
• The worker has no obligation to work for a specific employer.
• The employer is not obliged to use the workers services.
• The worker conducts his business taking on the risks of rectifying work, waiting for payment, invoicing, and paying his/her own tax and NI to HM Revenue and Customs independently.

The differences that exist for a worker being directly employed are as followed:

• The employee is taxed under the PAYE system.
• The employee is liable for a Class 1 national insurance contribution.
• The employer is responsible for paying statutory payments for example statutory sick pay and statutory maternity pay.
• Employees have rights under health and safety and employment laws, such as redundancy payments and the right not to be unfairly dismissed.
• The varieties of social security benefits are larger for employees as opposed to the self employed status.
• Self employed status is taxed by self assessment giving more freedom in claiming expenses. The self employed pay Class 2 and Class 4 national insurance contributions. These classes collectively are lower than the Class 1 National Insurance paid by the employed. People using the self employed worker services are not subject to pay NI in payment. Therefore it is no surprise that many companies favour self employed status for their workers and on many occasions try to mask a true employee situation as self employed status.

What if you are wrong in defining your work status?
If the wrong working status is declared, it is seen as the responsibility of the person/business making the payment to make the correct decision. It is crucial that the classification of worker is correct. If a worker is treated as self employed and HM Revenue and Customs deem them to be employed, all  payments made by the company would be recognised  as net payments and the employer would have to pay the owing tax and national insurance payments for the employee(s) as well as the employer’s national insurance. Penalties and interest can also be imposed for incorrect tax returns, which can be backdated for up to 6 years!

To confirm the classification of a worker as self employed it is advisable for a HR professional to devise a suitable Contract of Services for you and consideration to be made to the details listed in the H M Revenue and Customs ES/FSI leaflet.

Pricing
The risk factor has to be evident in self employed status, avoiding an hourly rate. This can be provided by ‘pricing a job’. This means that the price, instructions and time scale of the work should be agreed before hand and put into to writing before the start of the job.

Workmanship
A clause must be evident that the self employed worker will have to safe guard the work undertaken by correcting any faults. All self employed workers should hold public liability insurance. The most prominent test for assessing self employed status is the right to substitute a worker with another, who is capable of carry out the work if desired.

Provision of Equipment
Where appropriate the worker must supply their own equipment and tools for the job. The equipment required will be dependent upon the type of work being carried out.

How desirable is being self employed?
Kent University state that 3% of graduates claim to be self employed as soon as they graduate! If these figures were applied on a nationwide basis, the UK would have 7,000 gradates a year going straight into business!
If you need any advice on determining your employee’s work status or require a suitable Contract For Services, we will be pleased to assist.

Contact us today on Tel: 01280 817341      Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

HEALTH AND SAFETY

MAINTENANCE WORK

The HSE are focusing on maintenance work carried out on company’s premises and wanting to see evidence that it is adequately controlled.

In the past this would have been through site inspections, but with the funding cuts there are now prompting businesses to follow its guidance, see:

http://www.hse.gov.uk/safemaintenance/checklist.htm

Even though a visit is very unlikely, in the event of a reportable accident occurring then any failure to follow the guidance will leave the company open to prosecution.

So, if you are intending to carry out any maintenance works (either on the building or any equipment within it) then you will need to consider the work and how you intend to control it and ensure suitable protective measures are implemented prior to commencing.

If you require any assistance with any health and safety issues please contact either Rialto Health & Safety or Black Dog and we will be only too pleased to help. 

SPECIAL POINTS OF INTEREST

A free toolkit available from Macmillan Cancer Support to help employers support employees with cancer

Produced in association with the Chartered Institute of Personnel and Development (CIPD), the pack has been produced to offer practical guidance on managing employees with cancer and explains how they are protected by the Equality Act.

Reporting of Work place accidents to be aligned with the new Fit/Sick Note system

From 6th April 2012 the Riddor regulations will require an employer to report any employee absences due to a work related injury after 7 consecutive days, rather than the current 3 days.

Latest Tribunal statistics show an increase of 32% in Age Discrimination claims

In 2010/2011 there were over 6,800 claims made to tribunals for age discrimination.

The first person to be charged and convicted under the new Bribery Act….

has been Munir Patel, a court clerk. He admitted accepting a £500 bribe to waive a traffic penalty. This offence will accompany other charges of misconduct in a public place and perverting the course of justice.

The amount of Apprenticeships available during 2010/2011 has risen by 50%

Figures show that 442,700 apprenticeships started in 2010/2011.

Over 1/3 of these apprenticeships were for workers aged over 25 yrs and all schemes are evenly spread in demand between Intermediate, Advanced and Higher level apprenticeship schemes.

UK pilots win a 6 year battle for their holiday rights

The case was taken to the European courts challenging the UK industry practice of calculating holiday pay on basic salary, rather than the average amount earned. The UK Supreme court must now decide whether to accept the judgement of the European Court of Justice.

Is a lack of flexibility in working hours increasing absences levels?

A recent survey shows that 60% of working parents are not happy with their work-life balance. Many fear that a request to work more flexibly would damage their career prospects, as a result 13% take sick leave when their childcare arrangements break down, which is falsely driving up absence rates.

The number of people leaving jobs has reduced by 42%

These figures compare to figures taken from the National Statistics in 1998. The proportion of employees leaving their jobs voluntarily has reduced, particularly in the public sector.