Star legal writers: employment

Employment specialists tackle the tricky subjects of job security and social media etiquette.

Gateley: Unfriending someone on Facebook could be a legal matter

Last week it was reported that an Australian Fair Work Commission had decided unfriending a fellow employee on Facebook could be regarded as evidence of bullying.

The fact that there are now almost 1.5 billion people using Facebook meant this simple finding generated news headlines right around the world. Only a few weeks back Facebook announced that it had passed the milestone of one billion users in a single day, that’s 1 in 7 people on earth.

So, it should be no surprise that the subject
of Facebook activity is being raised more and more in the context of workplace disciplinary procedures.

In fact unfriending a work colleague was also one of the features of a recent case that came before the Employment Appeal Tribunal. When one of a team of handling agents employed at an airport was promoted to the role of supervisor, she thought it would no longer be appropriate to be Facebook ‘friends’ with her former colleagues. Her act of unfriending sparked a campaign of retaliation which included the image of a witch being imposed as a screensaver on her computer.

That case was reported only a few weeks after another employee had brought a claim of unfair dismissal after having been dismissed because of Facebook posts which he had made many months earlier. The employer considered that the insulting remarks about colleagues and his references to drinking alcohol whilst on standby, were grounds to dismiss for misconduct. The employee’s explanation that this was just Facebook ‘banter’ and wasn’t really meant to be believed was not accepted.

In the future unfriending a work colleague may not be the only way in which Facebook may cause a row to break out amongst colleagues. Facebook has recently confirmed it is now planning to add a ‘dislike’ button alongside the current ‘like’ button that can be used to indicate what others think of a post. Could dislikes also constitute bullying or even harassment?

In one of the earlier cases concerning Facebook it was found that postings which mocked a supervisor who had fallen down the stairs at work amounted to discrimination.

The subsequent ‘likes’ given by work colleagues were found to be potentially further acts of discrimination. It would not be difficult then to consider that the new dislike button could also be regarded in such a way.

The increasing frequency in which Facebook activity is playing a part in disciplinary procedures highlights the real need for employers to address the issue by having in place a social media policy that gives guidance on what is and what is not acceptable conduct.

The key message should be that…

Stewarts Law: The City redundancy season begins

By Richard Nicolle

Since 2008, “redundancy season” has become an inherent part of life in the City.

The shifting market and regulatory backdrop have led to swathes of job cuts, as companies restructure to fit the new landscape. Even now that economic conditions are more benign, many will wait anxiously as HR departments gear up for the annual cull.

Limits on bonuses have driven up salaries and by separating pay from performance firms are cutting headcount to limit wage bills.

So if you find yourself in the unhappy position of being made redundant, what can you do to help secure appropriate compensation without harming your future employability?

The redundancy process

Traditionally, organisations have sought to avoid using the word “redundancy”. In some cases, formal redundancy processes have been routinely ignored and employees dismissed with immediate effect. In such situations, employees might be presented with compromise agreements (now known as settlement agreements) with an offer which exceeds their contractual and statutory entitlements. Employers like the immediacy and simplicity, usually avoiding time-consuming negotiations with (or claims from) employees and their legal representatives.

Although this “traditional” practice remains common, it is increasingly seen as an unnecessary expense to pay termination sums in excess of legal requirements when it is possible and better to follow a fair redundancy process. Many employers now follow a process of collective consultation, use redundancy selection criteria, and individual consultation. Providing an employer follows a fair procedure and the redundancy is genuine, they should be able to successfully defend any claims for unfair dismissal.

Nevertheless, for some jobs, following a fair redundancy process may be seen as contrary to an employer’s interests. Senior or high value trading roles don’t fit well with protracted redundancy consultation, for example. Employers may regard the price of additional compensation as commercially worthwhile.

Is the money right?

If you face redundancy, the first issue to consider is whether you have a legal claim. Being aware of the legal arguments can help you to choose whether you should accept any payout or hold out for more. Employees with more than two years’ service are entitled to a relatively nominal statutory redundancy payment. Compensation for unfair dismissal is higher, limited to the lower of an employee’s gross annual salary or the statutory ceiling, currently £76,564.

For senior employees, the bigger consideration can be their contractual entitlement to any earned or prospective bonus, stock options, or other forms of deferred pay. Employees may lose out if redundancy results in the forfeiture of unvested options. Often, employers have made bonuses conditional on the employee remaining in employment and not being under notice of dismissal at the time payment becomes due…

Ones to watch

Gateley

Bonuses: money can’t buy you love

Spring is the time of year for thoughts of the annual bonus. So, what should you be thinking about before the bonus announcements are made?

The first thing to consider is the contractual status of the scheme and how far, if at all, you have discretion over the amounts payable.

Collyer Bristow

Five things you need to know about the Living Wage

Is it considered age discrimination to pay older workers a higher amount?

No. While paying workers varying wages depending on age would appear, on the face of it, discriminatory, the Equality Act 2010 prevents payments connected with the National Minimum Wage from being unlawful.

Shoosmiths

Employing young workers requires careful planning

ACAS has released new guidance on employing younger workers which emphasises the importance of getting the next generation into the workplace, trained and prepared for the full demands of the job.

Bates Wells Braithwaite

Ain’t misbehavin’

Dealing with employee conduct can be difficult, and employers can be anxious about striking a balance between treating employees fairly and dealing effectively with poor behaviour. This article looks at a recent case, and articles in the news, which highlight the ways in which an employer might choose to deal with misconduct.

Shepherd and Wedderburn

Pensions and the Budget

This year’s Budget provided for relatively modest changes to pensions rules, plus a few innovations.