FGWorks October 2015 by FG Solicitors

WORKS Chairman’s view Welcome to our new look and re-titled newsletter FGWorks. You will notice that it is shorter – we know you are busy and often overloaded with information so this newsletter has been redesigned and simplified to take you straight to the information your business needs. Simplification is something the government states it is aiming for when revising the value of termination payments which can be paid tax free. Having considered the proposals, I am not convinced this aim will be achieved. In summary, the plan is to replace the relatively simple principle of a £30,000 tax free allowance with an exemption for redundancy at a rate rising in line with length of service (so it will need to be individually calculated) and various other specific exemptions. These proposals are subject to consultation until 16 October 2015; I reserve judgment until the outcome of that consultation is announced. Although you may question whether consultation changes anything, I give a reminder that there are many instances in which consultation should always be undertaken in an employment law context. An employer who had no knowledge of the need to consult collectively about redundancies was recently ordered to pay 90 days’ gross pay per employee, which is the maximum protective award, for not doing so. We hope you enjoy our new look newsletter – FGWorks. We warmly invite your feedback, negative or positive, which we will use to improve our services to you.

Floyd Graham

October 2015 0808 172 93 22 info@fgsolicitors.co.uk www.fgsolicitors.co.uk

case round up: Fair dismissal for Facebook comments

An employee was dismissed for making derogatory comments about his employer on Facebook two years before his dismissal. The EAT held it was fair to dismiss the employee. The British Waterways Board v Smith [2015] UKEAT/0004/15.

Companion choice at investigatory meeting The High Court held that a university’s refusal to allow a representative of a professional defence organisation to accompany an employee at an investigation meeting concerning serious allegations of misconduct, was unfair and a breach of the implied term of trust and confidence. Stevens v University of Birmingham [2015] EWHC 2300 (QB) (31 July 2015).

Agency workers’ rights to be informed of vacancies Agency workers have the right, under the Agency Workers Regulations 2010, to be informed of vacancies within an end user company. The EAT rejected arguments that agency workers were entitled to be afforded equal status with comparable permanent employees in being considered for a vacancy. Coles v Ministry of Defence UKEAT/0403/14.

at a glance... Competitor steals star employee

FG life HR & legal Seminar dates

PAGE 2

PAGE 3

PAGE 4

Competitor steals Star empl yee! This could happen to any business. In this case, it’s a recruitment company, Recruit4stars. The company was set up ten years ago and Ima Moneymaker started out as an administrative assistant. However, she turned out to have exceptional recruitment skills and quickly made her way up the ranks and was promoted to head recruiter two years ago. Ima handed in her notice a month ago and said that she wanted to move to pastures new. Recruit4stars has just discovered that Ima has been offered a job by another recruitment agency around the corner, SuperRecruit. Ima is an avid user of social media and has over time added all her client contacts to her LinkedIn account. Recruit4stars is concerned that SuperRecruit will now be able to make use of these. WHAT CAN RECRUIT4STARS DO TO PROTECT ITS POSITION IN THE MARKET PLACE? 1. Look at the contract of employment – are there enforceable post-termination restrictions? Unfortunately, Recruit4stars gave Ima a basic statement of terms and conditions when she started with them in 2005. These were not updated when she was promoted and do not contain any post-termination restrictions. If Recruit4stars had provided Ima with a contract of employment which included well-drafted restrictive covenants, it could have prevented her from working for a competitor for a certain period after her employment ended. Recruit4stars could have reminded her of these covenants and ultimately applied to the Court for an injunction to

PAGE 2

... well-drafted restrictions taking into account all the circumstances of the business are likely to be enforceable ... prevent her from working for SuperRecruit at the time she resigned. Although there is a general rule against posttermination restrictions being enforceable because they are a restraint of trade, welldrafted restrictions taking into account all the circumstances of the business are likely to be enforceable. 2. Consider garden leave. Ima has 10 weeks’ notice because that is the minimum she is entitled to under statute. Recruit4stars could have agreed a longer notice period with her when she was promoted, but it did not do so. It also did not make provision for putting Ima on garden leave. If Recruit4stars had agreed a longer notice period, this would have enabled Recruit4stars to keep Ima out of the grips of her new employer for a longer period; garden leave would have allowed Recruit4stars to have taken her out of the market place for that time. This would enable Recruit4stars to build relations with her clients and candidates; confidential information may also start to become stale. Therefore, whilst it may still be possible to put Ima on garden leave, the shorter notice period means the benefit of so doing will not be as great as would have otherwise been the case.

3. Consider the LinkedIn account. The law in relation to LinkedIn and contacts made during employment is a developing area. Unfortunately for Recruit4stars, the following do not assist them: a. Ima set up her LinkedIn account on her own initiative and has a mixture of personal and business contacts. b. Recruit4stars does not have a social media policy and has never given Ima direction about what it expects her to do with her LinkedIn account. If Recruit4stars had: a. introduced a social media policy which set out its expectations in relation to LinkedIn; and b. included a clause in its contracts of employment setting out that any contacts made during the course of employment belonged to them, it would be in a better position to prevent Ima from using those contacts. As it stands, Recruit4stars would probably be able to dismiss her for gross misconduct if she tries to use contacts for the benefit of SuperRecruit while she is still employed by Recruit4Stars, but if she only carries out work for SuperRecruit when she is employed by them, there is little Recruit4Stars can do. Three months later, SuperRecruit has increased their turnover by 25% and Recruit4stars has watched its turnover drop. IT COULD HAVE BEEN SO DIFFERENT … Recruit4stars would have been in a strong position when they discovered Ima’s plans if they had the following: 1. S pecially drafted post-termination restrictions, garden leave, intellectual property and confidentiality clauses in the contract of employment. 2. A social media policy and/or contract clause relating to how contacts made through LinkedIn and Facebook are treated at the end of employment. 3. A longer notice period. Get in touch with us to make sure this does not happen to your business! This case study is not based on any existing business and is a fictional scenario based on elements upon which we have advised over many years.

FG Life: CIPD SEMINAR

Thank you to all those who came to our Effective Discipline and Grievance Processes Seminar, which was held on 15 September in association with the CIPD Bedfordshire Branch. The event was well attended and provided an opportunity for organisations to meet up and obtain a useful insight into effective discipline and grievance processes as well as gain practical guidance on difficult cases. Floyd Graham was the featured speaker and struck a chord with many of the attendees from whom we have received great feedback.

TESTIMONIALS FROM OUR SEPTEMBER SEMINAR "Very good presentation, fantastic content and very dynamic presentation skills." Samantha Goodchild – FAI Automotive Ltd

"An excellent, engaging event – realistic and to the point." Darryl Denyer – North London Hospice

"Very informative plus practical advice – a rarity!" Emily Dennett – Fisher German

Sorry we missed those of you who were unable to attend; we hope to catch up soon at our future events. Please see Page 4 for "Dates for Your Diary".

PAGE 3

Pr od Pa uc ge t HR & LEGAL AUDITING Our bespoke auditing methodology provides a comprehensive approach to delivering commercial solutions for the management of people risk. This enables organisations to maximise the return on the investment in their workforce. “Survey evidence suggests that risks associated with managing people are among the most significant faced by organisations. In other words they have the capacity to make or break the effectiveness of organisations.” Risk and Performance, HRs Role in Managing Risk, CIPD.

BUSINESS BENEFITS ■ Establishes the effectiveness of HR processes, that is, the extent to which these processes support the organisation's strategic plan. ■ Identifies areas where efficiency and effectiveness can be improved – leading to improved bottom line performance. ■ Minimises the financial and reputational risks associated with inadequate HR policies, processes and documentation. ■ Supports businesses working towards quality accreditations and excellence awards e.g. ISO 9001/2, IiP. ■ Gives owners/managers increased certainty and control and therefore greater confidence when managing their businesses.

DATES FOR YOUR DIARY FUTURE SEMINARS 14.10.15

Sickness Absence Management – Fit for Work

13.01.16

Round Up On 2015

13.04.16

Topic to be confirmed FG Solicitors' seminars are bespoke to your requirements – we are always open to suggestions regarding future seminar events. We are currently planning our next seminars and would like to ask you to get involved with suggestions, we suggest the topics below: ■E mployment Status/Self Employed ■C onsulting with the Workforce ■B uilding a High Performance Culture ■P rotecting the Business – Restrictive Covenants ■E quality & Discrimination ■H oliday Update Seminar ■B udget Update Seminar ■M ock Tribunal ■E mployment Strategies in a Changing Climate Please let us know if these are of interest to you or if you have another topic you would like us to present by contacting us on email: fgmedia@fgsolicitors.co.uk

SOLICITORS Lawyers for today’s employers Connect with FG Solicitors

2 Deanery Court Grange Farm Preston Deanery Northants NN7 2DT 0808 172 93 22 info@fgsolicitors.co.uk www.fgsolicitors.co.uk

Like us on Facebook