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By Michael Scutt, 03/02/2010 5:43 pm

Last week’s Law Society Gazette had an amusing article in its diary section, about a man in a post office sticking stamps onto the scores of valentine’s cards he had written, all of which said “I love you from ?”.  He was, of course, a divorce lawyer touting for business.  I laughed. However, I wasn’t so impressed by the way the scene was set because he is introduced to us as a “balding middle aged man”.  Now, can anyone explain why this is so funny? When are the Employment Equality (Prohibition of Baldie jokes) Regulations coming into force?  Not that I’m sensitive about it you understand…

P.S For those readers amongst you similarly follically challenged, baldness has been held not to be a disability under the DDA 1995.

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By Michael Scutt, 26/01/2010 10:00 am

Everyone is talking about social media these days and no longer is it confined to the purely social.  Many businesses are using it to promote themselves; good heavens, even lawyers are getting into it.  But use of sites like Facebook, My Space, You Tube and micro-blogging sites like Twitter present multiple challenges to employers. 

There have also been well publicised examples of employees being caught out by their status updates on Facebook – like the woman who complained that she hated her boss and called him a pervert, forgetting that he was one of her “friends” on Facebook.  He read the comments and a beautiful friendship was ended.  Other employees have pulled “sickies” and posted that onto Facebook.  Bad move.  Not only will the boss probably get to hear about it, the employee will become the laughing stock of the internet as millions of people all over the world receive the news of the indiscretion via round-robin emails.

On one level employers may not be persuaded of the merits of Web 2.0 and the plethora of seemingly time-wasting opportunities that it provides.  There is a great risk that staff could become inefficient and unproductive in surfing Facebook all day, or watching video clips on YouTube and that must be particularly galling for those employers who see no business application for these new technologies.  The temptation might be to come down hard on employees but that may provoke claims for constructive dismissal or unfair dismissal.  In an environment where for some people, surfing Facebook is as natural as reading a newspaper or a novel, an outright ban on accessing social media may be unreasonable.

For enlightened employers who do see the benefits of Twitter, YouTube, Facebook and the humble blog, the challenges are increased.  Not only is there the risk that some employees will take advantage to spend time promoting themselves rather than the business, they may post inappropriate comments on the web and severely damage the reputation of the business.   Worse still, the employer may end up on the wrong end of an action for defamation.  No longer is it enough just to have a policy covering access to websites and use of email (and don’t forget to include mobile phones and Blackberrys/iPhones in those policies).

In my view, employers face three challenges;

1. Excessive use of social media leading to loss of productivity

      2.    Risk of reputational damage/unwanted litigation to the business

      3.    Avoiding inappropriate use/abuse of social media without upsetting employment relations

Employers need to develop a strategy for use of social media in their business. This should not only cover how the business intends to exploit web 2.0 for its own purposes, but also a policy governing how employees should use it, again not just for business purposes but also for private usage.  Don’t forget that younger members of staff (“digital natives”) may be much more in tune with social media than older people.  In order to avoid grievances or unwanted employment tribunal claims be consistent in applying the policy.  As a solicitor who often advises employees, I frequently hear clients say that “Flossy was only given a written warning for the same thing” when they’ve been dismissed.      

The policy needs to take account of how the business wants to exploit social media and a “one size fits all” model isn’t going to work.  Instead the business needs to ask itself these sorts of questions;

1. Do we want to use social media to promote the business?
2. Who in the business will be responsible for using social media?  Senior management or more junior staff?
3.  What guidelines do we want to set them (these will probably need to be more specific for more junior staff)?  The guidelines will need to go beyond banning obscene or discriminatory comments and give guidance on how the business wishes to be perceived in the wider-world.
4. How will usage be policed and what sanctions will be put in place for misuse or abuse?
5. Will usage of the company’s computers be allowed for private use of Facebook, Twitter, etc?  If so, will usage be restricted to lunch-breaks or before/after work?  A complete ban may be unenforceable or risks causing ill-feeling.

It’s not an exhaustive list and I would be pleased to hear from anyone with additional questions that ought to be added on.

To be successful, all users will need to be “on message”.  In turn this may mean getting all users to “brainstorm” to devise the “voice” of the business.   Social media offers massive potential for businesses to communicate their message, develop their identity and build their brand.  Having a successful social media policy is at the heart of getting that right.

I would welcome your comments on any of the above and if I can assist further please contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk

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By Michael Scutt, 06/01/2010 5:37 pm

Wot, no snowman?

I’m not referring to the five inches of snow outside as I write this, and the inevitable disruption caused to roads and railways for the next week,  but instead I am considering what the main statutory changes affecting employment law issues in 2010 will be.

January  

Not much will happen this month while everyone looks in astonishment at their credit card bills, but just a reminder that the Vento guidelines on awards to be made in cases of injury to feelings in discrimination cases look to have been increased late last year in the case of Da’Bell v NSPCC. The Court of Appeal case in Vento v Chief Constable of West Yorkshire Police in 2002 set three main bands for ETs to consider when making awards for injury to feelings; 

Lower – £500 – 5,000                       – for one-off or isolated incidents 

Mid     - £5,000 – 15,000 – for more serious incidents but not of the most serious nature 

Upper -£15,000 – 25,000               – for the worst examples of discriminatory behaviour, such as where there has been a campaign of bullying and harassment.  Only exceptionally should awards be made in excess of the upper figure. 

Since 2002 these bands have not changed.  It is now anticipated that the new bands will be 

Lower:  £? – 6,000 

Mid – £6,000 – 18,000 

Upper – £18,000 – 30,000 

For a fuller and very helpful discussion see Usefully Employed’s post on the subject.  

February 

This month will see something that hasn’t occurred before.  The maximum compensatory award that can be made by an Employment Tribunal for unfair dismissal will actually decrease. The Employment Rights (Revision of Limits) Order 2009 states that the maximum award will decrease from its current £66,200 to £65,300 for all claims where the event giving rise to the claim  occurred on or after 1^st February 2010.  This is because the maximum amount is linked to the Retail Prices Index (RPI) and that fell by 1.4% in the year from 1^st September 2008. 

The MINIMUM AWARD that can be made to an employee excluded/expelled from a Union and not re-admitted by the time the case reaches an ET falls from £7,300 to £7,200 

The maximum guarantee payment to an employee under s.31(1) ERA 1996 decreases to £21.20 per day. 

Each February also sees various other rates and limits amended – usually upward.  This time though the maximum weekly award, used for Statutory Redundancy Pay purposes and calculating the Basic Award in Unfair Dismissal cases will remain at £380, but only because it was increased to that figure last October.   

April – other notable increases, will be 

Statutory Adoption         } 

Paternity                            }                          all increase from £123.06 to £124.88 per week 

Maternity Pay                   } 

Maternity Allowance      } 

But, Statutory Sick Pay (SSP) will remain unchanged at £79.15 p.w 

This month will also see employees at employers with at least 250 employees acquire the right to request time off for studying or training relevant to the business.  The right is simply to request time off NOT for the employer to fund the training. 

Income Tax will rise to 50% for those earning more than £150,000 p.a 

October 

Legislative developments tend to occur in April and October now.  In October it is expected that the Equality Bill will come into force to hopefully bring some order to the convoluted and confusing plethora of anti-discrimination laws currently on the statute book. It won’t just tackle discrimination in the employment arena, but will be wider ranging. Contractual provisions that prevent employees discussing their pay with workers are expected to be made illegal and the government will acquire the power to force privatre companies to disclose gender-pay details.  More on all this in due course, assuming that it survives a change of government 

Throughout the year there will be new cases being decided that will make the headlines, or appeals considering cases that caused a stir in 2009.  I will cover these as they come up so please subscribe to the RSS feed or to the email updates for “breaking news”. 

If you need advice on any employment law issues please call me on 0207 464 8433 or email me at michaelscutt@dalelangley.co.uk.

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By Michael Scutt, 29/11/2009 2:05 pm

How not to warn an Employee

A picture is said to be able to say a thousand words – how many does a video say then?  I’ve been trawling through YouTube for videos on employment law to illuminate, educate or, hopefully, just to amuse.  This video – produced by students at the University of the West of England (UWE) – deals with the issue of how to warn an employee for misbehaviour. It’s good at bringing a difficult subject to life. However, when I first watched it I thought it might not have had education as its main purpose …

 Click on the link below to watch it.

How not to warn an employee

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By Michael Scutt, 25/11/2009 10:04 am

Take a look at this article from The Daily Telegraph.  A good idea in principle but I’m wondering about the Data Protection issues involved, as well as the subsequent satellite litigation that would undoubtedly result.  Does anyone remember the blacklist of “difficult” employees compiled by The Consulting Association (see my previous post on the subject here)?  Or the National Staff Dismissal Register (see here) ? 

I can accept that there is a world of difference between a register kept by employers and passed on to others to identify those employees who stand up for their rigths and those people who bring many different (and fabricated) claims – but how do you differentiate between the two in practice?  I suppose we should bear in mind Oscar Wilde’s aphorism (albeit paraphrased) “To have one Discrimination claim is unfortunate, to have 34 is downright suspicious”.  Preventing someone from asserting their legal rights is not something to be undertaken lightly. 

It’s interesting that the Employment Tribunal isn’t keen to get involved and I can see why.  These serial litigants might turn their hand to defamation or judicial review instead of discrimination claims. Tribunals are wary of awarding costs against litigants and they certainly aren’t going to relish banning individuals from bringing claims. Since 1993 they have had the power to make a “restriction of proceedings order”, but they are very rare.   The way forward is shown  by Her Majesty’s Courts Service, which runs all the civil and criminal courts (but not the Tribunals) in the country and which maintains a list of vexatious litigants on its website (www.hmcourtsservice.gov.uk).  However, the people listed on there will have been declared a vexatious litigant in proceedings and thus there has been a judicial finding.  If Mr Turner’s idea is to get off the ground (and it deserves to) he will need the ET to be more robust in making  “restriction of proceedings orders” and then publishing that list. 

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By Michael Scutt, 22/11/2009 9:27 pm

A couple of weeks ago I was “twitterviewed” * by Lance Godard of 22Twts fame. It covered both professional and personal stuff and,  if you haven’t got any paint drying and don’t feel the need for root canal surgery, why not read the interview by clicking here?

* A Twitterview is a live interview on Twitter in 22 questions.  It’s a great thing to do – thanks for inviting me Lance.

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By Michael Scutt, 21/11/2009 11:35 am

 This blog has been missing high culture, art and music for too long.  It’s time for a change, but not quite yet.  Instead have a look at this video from Manpower, via YouTube, on how to approach employment law in song – it’s very good. 

The Employment Law Sing-a-Long Song

The lyrics are great – “sing along or you could end up in jail” - probably only in the US of course.  “Get all the facts or you might get the axe” – brilliant!

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By Michael Scutt, 05/11/2009 10:35 am

For those of you on Twitter I am being twitterviewed tonight by 22Twts. If you haven’t come across one yet, a Twitterview is a series of (22) questions posed by Lance Godard and my responses, in real time, on Twitter.  Lance asks some really interesting and high-profile people to do his Twitterviews so I’m delighted to be asked to take part and be in such august company.

It starts at 20.00 GMT and please take a look when I will be revealing my deepest darkest secrets, or something, as well as talking about Dale Langley & Co and employment law.  I don’t think Hello or Ok magazines will be terribly interested though.

 You can follow me  = @michaelscutt  and the  twitterview can be found at @22twts and #22twts 

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By Michael Scutt, 28/10/2009 10:10 pm

This is from yesterday’s Telegraph.  Marvellous.  Bad news for employment lawyers, of course.

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By Michael Scutt, 27/10/2009 10:30 am

Over on my Linked-In profile I’ve set up a poll asking which of the four following features you would most seek in your solicitor;

- Accessibility

- Affordability

- Ability, or

- Affability

You can link to the poll from here

I look forward to seeing the results in due course.  Feel free to leave a comment below.