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ROBERT GIBSONMANAGING PARTNER

SAMUEL PHILLIPS LAW FIRMrobertgibson@samuelphillips.co

.uk15 February 2011

Service Network Legal Update

Assembly Rooms, Newcastle Tuesday 15th February

11.30 am – 2.00 pm

SAMUEL PHILLIPS LAW FIRM

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SOCIAL MEDIA

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SOCIAL MEDIA – vital marketing tool

Vital marketing and communication tool

Love it or loathe it, here to stay

Some courts even allow it

Important to have social media policy

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SOCIAL MEDIA - using social media for your business

Intellectual property rights

Assess specific risks

Provide staff with clear guidelines

Appropriate compliance and quality control procedures

Take legal advice in case of posts containing unlawful content

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SOCIAL MEDIA – personal use of social media by employees

Have a policy that clearly sets out guidelines for personal use of social media

Guidelines should cover both social media at work and at home

Set clear standards for comments that employees may make

Make clear consequences of breaching guidelines

Business may be liable for damages caused by personal social media posts

Note case of civil servant who complained about her job on Twitter

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FLEXIBLE WORKING

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FLEXIBLE WORKING –who can request flexible working?

Employees (not workers) with 26 weeks’ continuous service

Available to employees looking after children 16 or under (18 if disabled)

Available to employees looking after an adult (over 18) in need of care

Not available to agency workers or members of armed forces

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FLEXIBLE WORKING – what can they request?

To care for the child or, if they are a carer of an adult, for that dependant:

A change to the hours they work

A change to the times when they are required to work

To work from a different location (for example, from home)

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FLEXIBLE WORKING – making a request

• Within 28 days of receiving a request, employer makes arrangements to meet

• Within 14 days of meeting, employer writes agreeing or rejecting request

• Specified grounds for rejection

• Employee can appeal within 14 days

• After another 14 days, employer must give final decision

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FLEXIBLE WORKING – employee wants to complain

Employer failed to follow procedure

Employer’s reason for refusal wasn’t one of the prescribed reasons

Decision to reject was based on incorrect facts

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FLEXIBLE WORKING – what next?

Right to request flexible working being extended to parents of children under 18 from April 2011

Government has also said it will consult later this year on extending the right to all employees

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SICKNESS ABSENCE

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SICKNESS ABSENCE - general

Deal differently with short-term absences (conduct) as opposed to long-term (capability)

Need policy that looks at when to discipline for absence; how often you make contact with staff when off sick, etc

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SICKNESS ABSENCE – short-term absence

If sick on series of individual days, investigate for pattern

Interview informally – give timescale for improvement and explain consequences

If no improvement, interview formally and may need to give warning

Make sure employee not suffering from underlying medical problem

If condition unlikely to improve, treat as long-term illness

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SICKNESS ABSENCE – long-term absence

Disability discrimination provisions of Equality Act may apply

If not and you dismiss, dismissal may still be fair as long as you: -

Discover true medical condition Consider alternative employment Consult with the person

Get consent to see individual’s medical recordsAccess to Medical Reports Act 1988Alternative employmentReasonable adjustments

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SICKNESS ABSENCE – long-term absence (continued)

Warning someone with sickness certificates not appropriate

Consult regularly

Stringer and Ors v HMRC

Pay in lieu of notice

Allow employee to appeal against decision to dismiss

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BANK AND PUBLIC HOLIDAYS

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BANK & PUBLIC HOLIDAYS - introduction

Workers not entitled by law to time off work on bank holidays

Currently 8 bank holidays per year in England and Wales, plus additional one this year to celebrate royal wedding on 29 April

Difference between statutory and contractual entitlement

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BANK & PUBLIC HOLIDAYS – statutory holiday entitlement

Full-time workers entitled under WTR to 28 days’ paid holiday per year

Up to the employer to decide whether the 8 bank holidays count

If given time off on bank holidays, no need for enhanced rate (unless contract/collective agreement states something different)

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BANK & PUBLIC HOLIDAYS – contractual entitlement

Can offer more generous holiday entitlement than under the WTR

Can also decide whether bank holidays are to be included within entitlement

Contract should stipulate rate that employees entitled to be paid for bank holidays

Note effect of custom and practise

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BANK & PUBLIC HOLIDAYS – contractual entitlement

ECJ decision Gomez v Continental Industrias del Caucho

ECJ agreed she was entitled to take her annual leave after usual summer shutdown

May mean that women have right to substitute leave for bank holidays they cannot take during their maternity leave in certain circumstances

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EQUALITY ACT OVERVIEW

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EQUALITY ACT OVERVIEW - general

Legal framework for discrimination law in England, Scotland and Wales

Covers discrimination for nine “protected characteristics”

Applies to all employers and anyone providing a service or exercising public function

Covers all job applicants, employees, workers (including some agency workers)

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EQUALITY ACT OVERVIEW – discrimination and harassment

Associative and perceptive direct discrimination (n/a to pregnancy and maternity)

Indirect discrimination n/a to pregnancy and maternity

Discrimination arising from disability

Three different types of harassment

N/a to protected characteristics of pregnancy and maternity and marriage and civil partnerships

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EQUALITY ACT OVERVIEW – pay and public sector equality duty

Claimants can rely on hypothetical comparator if evidence of direct discrimination

“Gagging clauses” outlawed

Public sector equality duty

General duty to have “due regard” to combating discrimination

Specific duties to publish information and prepare and publish equality objectives

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EQUALITY ACT OVERVIEW – positive action and health-related checks

Can treat someone with protected characteristic more favourably in recruitment and promotion

Employers must not ask about a job applicant’s health before offering them work, except in certain circumstances

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NEW LEGISLATION

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NEW LEGISLATION - April 2011

3 APRIL 2011

Additional paternity leave regulations become effective

Increase in rates of statutory maternity, paternity and adoption pay

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NEW LEGISLATION - April 2011

6 APRIL 2011

Public sector equality duty introducedPositive action introducedRight to request time off for training extendedRight to request flexible working extendedDefault retirement age abolished