Q One of our employees has been making insulting comments about members of senior management on Facebook. He has also been bragging on social media about drinking while at work? How do we go about disciplining him? Ideally, we would like to dismiss him.
Employees who upload material to social media which could damage their employer’s reputation can be disciplined and, in appropriate cases, dismissed. This is the case even if the damaging material is uploaded by an employee using their own equipment in their own time. However, to ensure a fair dismissal, you need to:
- carry out a thorough investigation of alleged actions and
- ensure that any penalty you impose is appropriate and proportionate to the harm caused.
Your assessment of harm in relation to social media posts will depend on the seriousness of the material posted and how ‘public’ the context is. What was the nature of the insulting comments, were they potentially defamatory? Were the comments and the assertions of drinking while on duty made on the employee’s private Facebook account, or accessible more widely?
As a general rule of thumb, the more ‘private’ the context, the lower the risk of reputational harm. There are also human rights issues to consider. Under the European Convention of Human Rights, every individual has a right to privacy and freedom of expression. However, in some circumstances, employment tribunals have been prepared to rule that employees have lost this right by putting certain materials into the ‘public domain’.
To justify taking disciplinary action against an employee in relation to their social media activity, you need to show that you are not acting ‘disproportionately’. Key to this is having a clear and robust social media policy in place which puts employees on notice as to what is expected of them in relation to social media activity. What is acceptable and what is not, and is clear as to the potential consequences of breach.
Q I run a small manufacturing company and am concerned about the impact of the introduction of a compulsory national living wage (NLW) next April as I fear it will put my business under considerable financial pressure. I may have to reassess my current pay scales and potentially end bonus payments. What are the legal implications of the introduction of the NLW?
The Government’s announcement in its July budget that from April 2016 it will be introducing a national living wage (NLW) of £7.20 per hour for workers aged 25 and over, operating as a premium on the existing national minimum wage (NMW) came as a surprise to many. As did its proposal that this rate should raise to £9 an hour by 2020.
For most employers in the highly skilled/specialised manufacturing markets, the initial introduction of the NLW will have a limited impact as they probably already pay more than the proposed initial rate. However, smaller employers in more competitive markets may struggle with meeting the cost of what is essentially an enforced pay rise in relation to a certain sector or the workforce.
To soften the blow, government has also announced a cut in employers’ national insurance contributions of £3,000 and a reduction in the level of corporation from its current 20% level to 19% in 2017 and 18% in 2020. However, notwithstanding these concessions, the initial cost increases will hit some employers hard.
An on-going holistic approach aiming balance out cost increases via improvements in efficiency and productivity is an obvious response. However, seeking to absorb the initial increased costs primarily from the wider wage bill comes with its own legal, not to mention employee relations, challenges.
Altering existing contractual arrangement, such as contractual bonuses, without an employee’s express consent, will amount to a breach of contract and could lead to successful claims of unfair dismissal. Also, depending on the number involved, such measures might trigger statutory consultation obligations.
However, non-compliance with the NLW will not be an option. The government has recently announced significantly increased enforcement measures, including doubling existing financial penalties, and the introduction of a new penalty of disqualification as a company director for up to 15 years, for those found guilty of non-payment of the NMW and NLW.
60 second guide
...to settlement agreements
A valid settlement agreement (formerly known as a compromise agreement) is one of the few ways an employer can achieve a ‘clean break’ at the end of an employment relationship. Under the terms of a valid settlement agreement, an employee effectively waives his or her legal right to present complaints against the employer in an employment tribunal or court.
Such a legal waiver is usually done in exchange for an agreed (often heavily negotiated) financial sum, but can also include non-financial matters such as the provision of an agreed reference.
There are certain conditions that need to be in place for a settlement agreement to be legally valid. For example:
- The agreement must be in writing.
- It must relate to a specific claim that the employee could raise against the employer.
- The employee must have received legal advice on the terms and the consequences of entering into the proposed settlement agreement. (Most employers are willing to make a contribution towards the legal costs of an employee obtaining such advice).
At the same time as renaming compromise agreements, the government introduced statutory provisions for employers and employees to hold ‘confidential’ pre-termination discussions aimed at reaching terms for ending of an employment relationship without recourse to litigation.
Previously, such discussions would have only been ‘without prejudice’ and therefore not admissible in subsequent legal proceedings, if there had been an ‘existing’ employment dispute. However, there are still significant limitations to the protection offered by these relatively new statutory provisions, not least because they only apply in respect of ‘basic’ unfair dismissal cases and not, for example, to claims of discrimination.
Employers should therefore always exercise caution when opening up settlement discussions with employees about the potential termination of their employment in case, ultimately, a valid settlement agreement is not reached.
Acas, (the Advisory, Conciliation and Arbitration Service), has produced a guide to the operation of settlement agreements and settlement negotiations. See http://bit.ly/1sWBOeC
