Social media & the law
One of your key challenges in the coming year will be to manage the impact of social media sites such as Twitter, Facebook and LinkedIn. According to Gagandeep Prasad, senior associate, employment group at law firm Charles Russell, it’s increasingly important that you are aware of the potential pitfalls of using the technology. “Social media provides a great opportunity to promote a business, share knowledge and best practice with others and create new business contacts and networking opportunities,” she says.
“However, as its popularity continues to grow, so do the risks associated with its use.” The major areas to be concerned with include managing confidential information, businesses being held vicariously liable for discriminatory comments by employees, recruitment, data protection and privacy. Prasad recommends you appoint an employee to manage the company’s use of social media and make sure your HR policies are fully up to date and cover all aspects of use.
“A suitable person should be charged with keeping track of the business’s use of social media, such as blogging on its website, and employees’ use of other sites on behalf of the business,” she advises. “You should implement a specific policy which clearly defines the parameters relating to the use of social media. This could be incorporated into the employee handbook or as a separate policy.”
The policy should include details on the use of social media during work time and how to use it responsibly, specifically in relation to sensitive business information.
In the new year, several changes will come into force. These follow the government’s 2011 Modern Workplaces Consultation, which will extend the Right to Request Flexible Working to all employees with 26 weeks’ continuous service.
The proposals, which are included in the Children and Families Bill, will replace the statutory procedure for considering requests. As an employer, you will have a duty to act within a reasonable period and introduce a best practice guide.
Although this will put an administrative burden on you as an HR professional, working parents will benefit from greater freedom to ask for flexible hours. “You must have a relevant policy for responding to flexible working requests,” Emma Bartlett, employment partner at Speechly Bircham, advises. “Also note that everyone will have the right to ask for changes to their hours. You will need to ensure you are consistent in how you deal with requests. And be aware that the more flexible workers in a team, the greater the strain will be unless communication between the team is maintained and possibly improved,” Bartlett notes.
Changes in TUPE
TUPE – The Transfer of Undertakings (Protection of Employment) Regulations – is another notoriously contentious area to manage. In simple terms, TUPE protects employees’ terms and conditions of employment when a business is transferred from one owner to another, but the legislation changes regularly. According to Prasad, you can keep up with this quite easily. “The new rules don’t go as far as the government had envisaged. Employees will still be able to claim unfair dismissal where there are substantial and detrimental changes to their working conditions,” she notes. “However, you must be aware of amendments so that your business can comply – otherwise there could be legal consequences.”
The main changes concern the rules relating to service provisions, in that the legislation will clarify that activities or roles carried on after TUPE must be “fundamentally or essentially the same” as those before it. You will be required to supply liability information to employees 28 days before the transfer, rather than the current 14 days.
There are many changes to the consultation. “Regulation 4 and Regulation 7, which relate to the restriction on changes to terms and protection against dismissal, will reflect the wording used in the Acquired Rights Directive and the European Court of Justice case law,” Prasad explains. “This is to avoid the risk of TUPE being interpreted more widely than required under the Acquired Rights Directive.”
Prasad recommends giving employees training to ensure they have a good understanding of the TUPE law and are kept up to date with changes. The government has also pledged to improve its guidance on TUPE.
employment partner, Speechly Bircham
Emma advises on all aspects of employment law, including contentious discrimination matters, and leads diversity issues.
senior associate – employment group, Charles Russell
Gagandeep is a corporate employment lawyer, working litigious and advisory issues.