There will be occasions where employers reasonably suspect that their employees are misusing company time or assets. Given that all employees have a right to privacy under Article 8, is it appropriate for employers to employ covert surveillance to prove their suspicions?

The Employment Appeal Tribunal recently held that in some circumstances covert surveillance can be appropriate.

In the recent case of City and County of Swansea v Gayle, Mr Gayle was dismissed after his employer recorded him playing squash at a gym when he was purporting to be at work.

At first instance, the Employment Tribunal accepted that Mr Gayle had defrauded his employer by playing squash when he should have been at work; however, it was held that the covert monitoring rendered the dismissal unfair. The EAT overturned this decision. In holding the dismissal as fair, it took account of the fact that the covert monitoring took place in a public place. The EAT also held that fraudsters in general could not reasonably expect that their fraudulent activities would be “private” from their employer.

This case should not be viewed as a green light for employers to initiate covert surveillance. There are occasions where covert surveillance may be appropriate, however, employers should be cautious before embarking on any monitoring behaviour.

After attending the CIPD Scotland Centenary Conference in Glasgow and listening to the cases of social media successes and failures, Solve. were interested to find out if social media is viewed as a risk or a valuable communication tool by Business Owners, HR Professionals and Managers across Scotland.

We have also seen a rise in the number of enquiries to our team about supporting social media challenges and there have been many cases recently that highlight the perils of social media, such as employees being dismissed on the grounds of bullying and harassment for making inappropriate and disparaging comments on Facebook and cases involving the sharing of sensitive company information on sites such as LinkedIn.

All that got us thinking, how many businesses are integrating social media into their communication and engagement strategy and how secure are business policies on social media usage and the consequences?  We also wanted to know if HR teams were implementing social media strategies and if so were they purely about mitigating risk to the business or was it about being proactive and adopting social media as a communication and engagement tool.

We decided to send out a social media survey to over 100 CIPD Scotland Centenary Conference delegates from a cross section of business sectors.

The results demonstrated that whilst most survey participants used sites such as LinkedIn (92%) and Facebook (80%) for personal usage, only 20% of businesses use it to engage and communicate with employees.  However, our social media survey found that 72% of participants rated Social Media highly as a tool to be embraced by businesses to engage and communicate. This highlights a fantastic opportunity for HR professionals and Business Owners alike.

The few that do utilise social media as a communication tool mainly use Facebook and LinkedIn with Facebook Groups and LinkedIn Mail being the most popular features.

For the businesses that don’t use social media (72%) there were a variety of different reasons stated for not using it to engage with employees such as: organisation being too small, viewed as inappropriate, prefer to keep personal and work lives separate, preferring other internal forms of communication such as emails, meetings, intranet, etc.  Others, however, did state that they simply hadn’t implemented it yet as they were still unsure of the whys and hows, but could see the benefits of using it to engage with their employees.

As an external communication tool social media appears to be positively embraced as 84% of our survey participants use social media to engage with customers with the most commonly used being Twitter (85%), Facebook (70%), LinkedIn (65%) and YouTube (25%).

Over a third of the survey’s participants had dealt with issues within the workplace caused by social media.  There were a variety of issues raised such as inappropriate messages and photos being shared in the workplace, disparaging comments being made on Facebook about employees or the company and personal relationships becoming public.  There was one instance where and entire team’s dynamic was upset as a result of inappropriate photos and comments being posted after a team social event, this resulted in friction within the team and subsequently affected productivity.

Overall the survey’s participants’ main concerns around social media were that there is a lack of control, can damage reputations, misuse of company time, commercial risks, bullying and harassment and an increase in ER issues.  One participant commented that “the whole thing is a minefield” as it is hard to police efficiently.  The need, therefore, for the implementation of a robust social media policy has become more apparent.  When asked if they have an appropriate social media policy 76% of the survey’s participants stated that they had one in place with around half of those having a policy that covers usage in and out of the workplace.  Less than a third felt fully confident about handling a social media complaint.  Again highlighting the need for a robust social media policy within the workplace.

What’s clear is that social media is here to stay! Whether you view it as a risk or a valuable tool one thing is certain: it needs to be managed and controlled effectively.  Businesses need to consider the implications that social media can have on the working environment, HR function and employee performance.

The team at Solve are here to offer help and advice on any of the issues highlighted in this blog. Contact Us

If you would like a FREE copy of the social media report please email lindsey.mcghie@solvehr.co.uk

Solve. have a number of blogs in the Ideas & News.

 

 

NHS recently predicted that if present trends continue half of the population could be obese by 2030.

In the recent case of Walker v SITA Information Network Computing Limited the Employment Appeals Tribunal (EAT) held that an obese employee was disabled and therefore capable of bringing a disability discrimination claim against his employer.

In light of this decision, some employers might be alarmed to think that they should automatically class obese employees as having a disability; that fear would be largely groundless.

The Equality Act defines a disability under section 6 as a person who has a “physical or mental impairment” which has a “substantial and long term adverse effect on that person’s ability to carry out normal day to day activities.”

Mr Walker who weighed 21.5 stone brought a discrimination claim on grounds of disability. He suffered numerous health complaints including high blood pressure, depression and bowel problems. Although these problems gave rise to a myriad of symptoms (chronic fatigue, abdomen pains and pains in his limbs) which affected his ability to carry out day to day activities, the Tribunal held that he did not have a disability because medical professionals could not find a physical cause for his ailments other than obesity.

The EAT held that the first instance Tribunal had erred in law; finding that the Tribunal should not have focused on whether obesity itself should be considered a disability but whether the effects of that condition might give rise to ailments which could be deemed a disability.

In some ways obesity can be compared to alcoholism, an illness which expressly does not fall under the Equality Act’s definition of disability. While the alcoholic may not be disabled by dint of their addiction, the liver disease they may go on to develop could cause them to suffer ailments that would fall within the definition of a disabled person under the Equality Act.

The ailments consequent upon obesity might cause the overweight employee to fall into the category of disabled, but such an employee who has not yet developed disabling symptoms does not suffer a disability by reason of obesity.

What’s in a Job Description? More than you probably think, is the short answer to that!

A well thought-out and accurate job description isn’t just a way to tell your employees, both current and prospective, about a job.  It’s an opportunity to communicate your core values, to focus your recruitment process, to enhance your candidate’s experience of your company and to get the best out of your people.  Here’s how…..

It’s widely accepted that a Job Description tells its reader about the job in question, be they a current employee considering that push for promotion, a candidate who’s stumbled across your Company online or an employee preparing for their, much anticipated, end of year appraisal.   A good Job Description though, and particularly the Person Specification (where we detail the skills and experience the job-holder must have to do the job well) can be a powerful tool for promoting your Company’s core values.  Take a value as straight forward and common place as learning.  Your Person Specification could request that your applicants “Have an up to date record of CPD”.  This will get the job done, but what does it say about your Company?  Not a great deal.  Why not say you are “Actively seeking exceptional candidates with a passion for learning”.  This tells your reader that you’re proactive, aiming high, you’re looking for the best and only the best and that you want people who live and breathe and really value their learning, not just the employee who coasts through the training course just to get the certificate.

“Experience of working in a customer service environment” is another common interloper found in Person Specifications right across the web.  Really?  What about “We are seeking colleagues who thrive in a challenging customer focussed environment”?  (although one always has to guard against the use of flowery language for the sake of flowery language) You’ve just shared with the reader a little about the culture of your Company, that you’re looking for only the best, that you want candidates with a record of success and you’ve managed their expectations a little too, this is “challenging” work!   Whether your reader is a candidate, an employee or a customer these are messages that you need to get out there.

Not only does a carefully worded (but never too flowery) Job Description give an insight into your Company’s values – customer experience, learning, innovation, social responsibility, the list goes on – but it has other benefits too.  The Job Description is one of a candidate’s first steps in their journey from prospective candidate, browsing the web or flicking through the Thursday papers, to your newest recruit.   It’s important to make that journey as pain-free as possible.  What is it they say about our perceptions of people being formed within 30 seconds of meeting them?  The same is true about your Company.  If your Job Description is wordy, full of company-specific jargon and poorly laid out or if your Person Specification is dry and stale or 8 pages long, the candidate will already be forming some pretty unflattering opinions about your Company.

Worse still, an inaccurate Job Description presents its own challenges.  If the job requires that the job-holder can drive, tell them in the Person Specification.  We instantly get rid of any prospective candidates who can’t drive.  Creating a Job Description isn’t about appealing to the masses; it’s about focusing your recruitment campaign on the right people, in this case only those who poses a skill essential to undertake the job, driving.  The same is true of any skill, experience or qualification though, if they are essential for the job, be up front and say it.

But, let’s not confuse what is essential with what we would like!  Essential criteria on a Person Specification are just that, essential – the job holder cannot possibly do the job without this skill or qualification.  A pilot and a pilot’s license, a company director and experience operating at strategic level, a Civil Engineer and membership of RICS (for example).  So how can we get a balance between appealing to a wide enough candidate pool, whilst being able to narrow down our search?  The answer is never to be afraid to specify desirable criteria.  These allow us to narrow the field a little once all the candidates have satisfied us that they meet our essentials.  Don’t forget that candidates can often request to see what’s been written about them and to legitimately and confidently tell them that they did not meet the desirable criteria where other candidates did, really takes the pressure off!  Be careful to distinguish between the essential and desirable criteria, to get the two mixed up can lead to difficulties.  To state categorically that a job-holder must have a driving license, if it can be shown that the job can be done by other means opens the door for a discrimination claim under the Equality Act for example.

And finally, a Job Description doesn’t stop becoming useful once the candidate is in the door.  It will form the backbone of your induction, Performance Management and appraisal procedures, ensuring they are performing, the values your Company promote are upheld and they are clear about what’s expected of them.  As long as the Job Description is an accurate and fair reflection of the job the employee is doing and no-one feel they’ve been hired under false pretences then there should be no cause for distrust or disengagement.

In short, a good job description is a useful tool for ensuring you get the best of your people.

So, what’s in a Job Description……

 

As Mr Teggart, a former employee of TeleTech Ltd recently found out, an individual can legitimately be dismissed from employment, where they have been found to be Bullying and Harassing a fellow employee via social media, even when this occurs outside of the workplace.  In this case, Mr Teggart, made offensive comments about a fellow employee on his Facebook page, at home, on his private computer.  Having seen his comments, fellow employees or Facebook friends made the individual aware of the comments and someone even reported them to the employer.

Upon investigating the claims, TeleTech, took the decision to dismiss Mr Teggart for Bullying and Harassment and bringing the Company into disrepute.  Mr Teggart, believing that this action was unfair and a breach of his Human Rights, launched tribunal proceedings against the Company.  Whilst the tribunal dismissed the Company’s claim of them being brought into disrepute as a result of their former employee’s actions, they upheld the Bullying and Harassment claim, stating that his actions had caused the individual about whom the comments were made, to have to take time of work and had violated her dignity by creating a degrading working environment.

Whilst this judgement serves as a warning to employees about how they behave on Facebook and other Social Media, it also sends a clear message to employers about ensuring that they take Social Media seriously and consider its place within their Company.  As a basic, all Companies should have a policy on Social Media, ensure that policy is up to date, reflective of best practice and that the consequences of breaching the policy are clearly communicated.

However, many Companies are taking this even further by looking at how they can take the power of Social Media into their own hands, using it as a tool to increase communication and engagement.  Eastern Western Motor Group are one of a number of Companies who have created their own Facebook page to be used by both the Company and its employees to share news and information on the Company itself and the brands they represent.  Further, it allows the Company to gather the thoughts and views of their employees, almost instantaneously, ensuring they have their finger on the pulse when it comes to making decisions that affect their people.

Here at Solve. we believe that forewarned is forearmed, therefore, whether you view Social Media as friend or foe, it is important to be aware of its continued popularity, its presence, in even the smallest of workplaces and how it can be used to your advantage.

Do you need help creating a Social Media Policy? Perhaps you need advice on how to make Social Media work for you and your employees?  Whatever your needs Solve. are here to help. Free Consultation. mail@solvehr.co.uk

When Solve. heard about this case at the CIPD Conference in Glasgow we wanted to find out how people feel about Social Media in the workplace.  Look out for our survey coming later this month.

With all the recent press regarding ‘no fault dismissals’ and ‘Settlement Agreements’, it is no wonder employers are confused with regards to what they can and can’t do when it’s time to part ways with an employee.

Fundamentally, reasonableness and due process should remain at the heart of what we do, however, there comes a time when even the most patient of employers says enough is enough.  When resolving any employer/employee dispute, it is important for employers to recognise that no action is without risk.  Even the most carefully executed process will not prevent a motivated ex-employee from raising tribunal proceedings and potentially being successful.

However, we all know that the riskiest business of all are dismissals that come as a result of an ‘off the record’ conversation, often held on what an employer thinks is a ‘without prejudice’ basis.  So when is the right time to have such a conversation and on what basis?  Whilst the Government has shelved plans to allow so called, ‘no fault dismissals’, which were tabled as part of the Employment Law Review, this summer, it is expected that we will see the introduction of ‘Settlement Agreements’, an updated version of what we have all come to know as ‘Compromise Agreements’, through which an employer can gain protection from unfair dismissal claims.  These ‘Settlement Agreements’, will come at the end of a process that will begin with a proposal to end the employment relationship which can be tabled by either the employer or indeed the employee.

Using standard templates and ACAS code of practice, employers will be guided end to end through the process.  Whilst all this sounds favourable for the employer, it is important to note that this process will only offer protection in unfair dismissal claims.  Claims that include other breaches such as discrimination, evidence of automatic unfair dismissal, e.g. Whistleblowing, or where there is evidence of ‘improper behaviour’, such as coercion will not be protected. It is also important to note that any conversations held prior to obtaining a signed ‘Settlement Agreement’, can still be admissible in Employment Tribunal proceedings, unless held on a ‘without prejudice’ basis.

The rules for such a conversation are that they should be only be held in ‘a genuine attempt to settle a dispute’ and both parties should be aware of exactly what that means.  This suggests that employers should explain fully what ‘without prejudice’ means, prior to the commencement of such discussions, preferably in writing; and should remind the employee of the same at the start of any face to face or telephone discussions.

Whilst Solve. welcome the Governments plans to ease the ending of fractious employment relationships, it is clear that this particular process is not black and white.  Therefore, even if you believe that you have a straightforward case of unfair dismissal, we would suggest that you review any proposals for ending the employment relationship with a specialist HR and Employment Law practitioner.

If you have any questions or would like some more advice please contact us on mail@solvehr.co.uk