What is your name, job title and company?
Helen Crossland, partner in the employment team at the law firm Seddons.
What are the top 3 employment law issues right now?
Certainly the main issues we handle as a team presently stem from the advancement of technology, social media and more flexible working arrangements and how this combined blurs the boundaries between work and personal life. The employment relationship and implied term of trust and confidence is now being tested to new levels. This is because there is a trade-off where employees’ use of mobile phones and social media during work time is tolerated in exchange for an expectation that the employee will also use IT equipment and remote access provided to them by their employer to undertake work both in and outside working time.
Working fast is now the norm and working remotely or on the move has compounded the risks, raising the chances of employee negligence and errors. Confidential information is now more susceptible to misappropriation or theft, and the employer’s reputation is now more easily damaged by employees’ actions outside the work environment. This includes publishing about their work, views and private life on social media.
Employees are also jeopardising their jobs and career progression by prioritising tweeting and personal messaging in company time. This draws attention to productivity and value levels at a time when businesses have the full backing of the law to monitor official and, in certain cases, personal use of company IT equipment and well as use of social media where privacy settings allow.
How would you advise employers to tackle the issues you mention above?
I would advise them to block access to social networking websites from work computers to reduce the risk to IT systems and block employees’ use of social media in work time. It is necessary to protect confidential information by imposing restrictions on remote access and the ability for company data to be saved onto non-work devices.
Consider a blanket ban on using personal phones during working hours (not work breaks) which could be counteracted by rewarding improved performance and productivity. Employees need to be trained on proper use of the internet and its security issues. Educate them about how their actions could bring their employer into disrepute, or cause it to be the subject of a legal claim. This includes employee’s postings on social media which could amount to defamation, discrimination or harassment of a work colleague or business contact, or where they have divulged commercially sensitive or confidential information.
Have in place and publicise IT, communications and social media policies which empower the employer to take unfettered action in the event of misuse or any conduct which could pose a reputational threat to the business. Policies should state clearly the employer’s right to monitor use of company IT systems, which could also be applied to ensuring remote and home workers are fulfilling their work requirements. Do not discriminate in any sanctions applied to employees and treat breaches fairly and consistently.
Are there any upcoming employment law updates that employers need to be mindful of?
The expansion of shared parental leave in 2018 to working grandparents is likely to increase the take up of such leave, which so far has been underwhelming. It is estimated that two million grandparents currently give up work or curtail their working hours to care for grandchildren. This means a large section of society may well benefit from the extended provisions. The doubling of statutory paternity leave is also two years away. This means that employers are well advised to review their current arrangements regarding payment of all types of statutory leave to ensure parity among female and male employees and whether the company’s approach going forward is to encourage or discourage take up of statutory leave by the way it is remunerated.
Could you indicate how these updates will affect day to day working?
The numbers of those qualifying for, and taking advantage of, shared parental leave is set to escalate soon. However, the applicable notification requirements will be unchanged. This affords employees greater flexibility in choosing their preferred leave patterns, or to backtrack at short notice from any previously outlined plans. Employers should gear themselves up for coping with absent employees on little notice, including from fathers or grandparents where it is less obvious they may be lining up a request for shared parental leave. Managers need to be alert to identifying short or long term commercial measures to plug absences. HR personnel also need to be up-to-speed with the regulations governing shared parental leave to ensure the business is not exposed to any procedural shortfalls.
It has now been confirmed that employees who receive commission or overtime as a regular part of their pay, ought to have this reflected in their holiday pay. This is a major consideration for businesses, including in sales and in the recruitment, retail and hospitality sectors, where commission in particular is a customary part of an employee’s remuneration. Unless employers administer holiday pay in line with the legal position, they face the potential for multi-party claims seeking backdated pay. To absorb any sudden uplift in salary costs, employers may need to examine existing pay and commission structures, fix salaries to include overtime, introduce greater controls on when overtime and commission is paid, and take a tougher stance generally towards poor performers and workforce numbers.
What systemic changes do you anticipate in the coming years from an employment law perspective and how can employers prepare?
Flexible and home working is very likely to shape the future face of work. The opening up of the right to apply to work flexibly for all employees is just the beginning, and more and more employers are actively encouraging home working and hot-desking rather than leasing expensive office space and the ancillary costs of such. Of course remote working is incompatible with certain roles and industries but where it is not, it is likely to become standard. Such arrangements can be enormously productive but should nevertheless be subject to careful consideration and written terms as they place natural challenges on the relationship of trust and confidence between the employer and employee and potentially expose the employer to heightened risks in terms of IT systems, security and compliance, productivity and vicarious liability.
It is well known that Tribunal fees have served as a deterrent to would-be litigants and the trend is towards ‘softer’ measures to resolve complaints. Whereas mediation and other conciliatory initiatives have until now been viewed with ambivalence by some employers and practitioners, particularly in the private sector, the role of alternative means to resolve disputes is likely to become more accepted and customarily used.