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JULY 2013 // FOCUS ON: TECHNOLOGY & COMMUNICATIONS

AZETTE the quarterly newsletter of Floyd Graham & Co.

Lawyers for today’s employers

IN THIS ISSUE //

MONITORING EMPLOYEES’ COMMUNICATIONS


Floyd Graham & Co Solicitors Lawyers for today's employers

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2 Deanery Court Grange Farm Preston Deanery Northants NN7 2DT Email: info@floydgraham.co.uk Tel: +44 (0)1604 871143 www.floydgraham.co.uk

CHAIRMAN'S VIEW Hello again FGazette readers! Money, money, money... everyone wants to make it and no one wants to part with it. According to recent headlines some companies prefer making money to giving it away, to the extent that they have not even been paying their staff minimum wage; HM Revenue and Customs have caught up with some of these companies and allegedly some of the UK’s largest employers are paying back as much as £4m to workers. Companies are not the only ones that have money making schemes in mind; this appears to also be at the top of the agenda for the government. In terms of employment law, plans include financial penalties of between £100 and £5,000 where an employer has breached a worker’s rights and there is an aggravating factor. This will come into force for tribunal hearings on or after 25 October 2013. Fortunately, it's not just employers who will be the target of revenue raising plans in the employment arena. From 29 July 2013, employees will need to pay fees to bring a claim in the employment tribunal and then a further, larger fee for the hearing.

The hope is that this will deter employees from bringing spurious claims, saving employers money and time; if it works this can only be a positive outcome in the current climate. So, whether you view the changes as filling government coffers or a move towards greater justice in employment tribunals, I wish you a prosperous second half of 2013 with less (or preferably no!) tribunal claims. It may be the opportune moment instead to invest some time (and maybe a little money!) in reviewing or putting in place social media policies to protect your business for the future. You will find some tips within this issue to assist you.

IN THIS ISSUE // page 3 // fgC news page 4 // CONTROLLING SOCIAL MEDIA CONTACTS page 6 // MONITORING EMPLOYEES’ COMMS page 8 // COVERT RECORDINGS page 10 // BRAINTEASERS


SEMINAR EVENT On 13th June 2013 we hosted a breakfast seminar entitled ‘Effective Disciplinary and Grievance Investigations and Hearings’. Thank you to everyone who attended and to the team who worked very hard in bringing the seminar together. To view any of our employment law updates, please visit www.floydgraham.co.uk

Thanks for coming!

FGC NEWs

SEE WHAT WE’VE BEEN UP TO AT FLOYD GRAHAM & CO H.Q. CONGRATULATIONS Floyd Graham & Co recently attended an exhibition hosted by Northamptonshire Chamber of Commerce at The Silverstone Wing. The team held a raffle for a bottle of Champagne, which was won by Gary Blunt, of CKN Print Limited. We hope you enjoyed the Champagne Gary!

BEING A GOOD NEIGHBOUR We are always keen to support our local community and are often involved with raising money for charity. If you know of any great causes that we can support, please let us know by emailing: fgmedia@floydgraham.co.uk

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SOCIAL MEDIA WHO CONTROLS THE CONTACTS? Awareness of an organisation's brand and profile plays a key role in its business success. The use of online networking as part of any business development or marketing strategy is now a common occurrence; it is an additional means of reaching out to potential business partners and professional contacts. LinkedIn is probably the most developed business and professional networking site in existence at the moment. Employers actively encourage their staff to embrace social media networking as a way of increasing online presence for their commercial activities.


organisation’s database but the use of social networking forums such as LinkedIn has led to this information also being stored on social media platforms. It is only at the point when an employee leaves, taking the details of key contacts stored in their account, that the employer thinks about the options for protecting its business. Usually, an employer’s initial reaction is to want to take ownership of the account. An employee however cannot be forced to hand over control of the account. In the case of a LinkedIn account ownership is personal to the account holder and is not transferable. Employers should therefore look instead to protecting what is of value stored on the platform i.e. its contacts. Whilst the question of who owns the social media contacts is relatively untested by the courts, recent case law has suggested that a court may consider that an employee’s business contacts stored on an employer controlled LinkedIn account are likely to be the property of the employer. Due however to the lack of definitive guidance from the courts on this point prudent employers should still be proactive when it comes to protecting their business contacts; it is also essential that they are able to show that the account is a business tool, not something personal to the employee. Taking steps to exert as much control over the account as is possible is key to an employer

being in a strong position to protect its business interests. Initial steps could include, arranging to set up the account on the employee’s behalf, creating the password, inputting the text for the employee and arranging for their photograph to be taken and posted. Any associated costs could be paid to the employee as a business expense. Placing an obligation on the employee to build up the LinkedIn site with clients and contact details as part of their role also goes a long way to diluting the personal nature of the account. Contracts, policies and procedures also play a valuable part in protecting an employer’s contacts from the start of the employment relationship. Posttermination restrictions should be in place and any confidentiality provisions should be tailored to ensure that what the employer considers is confidential is identified. A social media policy is essential and invaluable. The policy should make it clear that contacts built up by the employee on the employer’s behalf belong to the employer. Details of how the social media account can be used should be clearly set out. For example, a high privacy setting could be used to prevent the employee’s contacts from seeing who else the employee is connected to. Any sanctions for a breach of the policy during employment should be set out including disciplinary action. Of more importance is the guidance that is provided about what happens when an employee leaves. This could involve the employee being required to

agree to the password being changed or handed over. Another option would be to require employees to delete contacts acquired during their employment and confirm that they have done so. Even if legally an employer cannot take full control of the LinkedIn account, an employer can do much to protect its position. Social media marketing is however far from saturation point with new trends occurring all the time; employers therefore need to keep their practices under review to ensure that the protection in place remains effective and valid.

A social media policy is essential and invaluable. The policy should make it clear that contacts built up by the employee on the employer's behalf belong to the employer. Details of how the social media account can be used should be clearly set out.

Contacts and client details would have typically been stored on an

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I’VE GOT MY EYE ON YOU!

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CAN EMPLOYERS MONITOR EMPLOYEES’ COMMUNICATIONS? New methods of electronic communication and on-going developments in social media can have very real consequences for employers who are often faced with employees excessively using the internet during working hours or with employees sending inappropriate emails, which may amount to harassment or discrimination towards other employees. Consequently, employers are increasingly tempted to monitor their employees' communications.

BUT CAN EMPLOYERS DO THIS? Any form of workplace monitoring raises the issue of privacy.

In addition, any processing of employees’ personal data, which

Under the Human Rights Act 1998, an employee is entitled to

would arise as a consequence of monitoring, engages the

expect some degree of privacy in the workplace; therefore an

Data Protection Act 1998; employers must therefore ensure

employee who feels that their privacy has been invaded may

they comply with the eight data protection principles when

argue there has been a breach of the obligation of trust and

monitoring communications.

confidence, which is implied into all employment relationships and could claim they have been constructively dismissed.

Also, the provisions of the Regulation and Investigatory Powers Act 2000 and the Telecommunications Regulations 2000 protect employees from unlawful interception of their telecommunications.


So How can the employeR legally monitor communications? In order to not fall foul of the legislative protection put in place for employees, employers should have a carefully drafted communications monitoring policy. In formulating the policy, the employer should firstly decide what types of monitoring should occur, who has the authority to monitor and what the purpose of the monitoring is. The purpose should be clear and accurate for each type of monitoring that will occur. Once the purpose of the monitoring has been identified, the employer should consider whether monitoring is the most appropriate way to meet the purpose or whether there are any less intrusive alternatives. For example, if the purpose of the monitoring is to prevent harassment in the workplace, the employer would need to demonstrate why less intrusive methods of preventing harassment such as harassment training are inappropriate.

what information should be provided to the employee? Under the Data Protection Act, it is not simply enough to inform employees that their communications may be monitored. Employees must have a clear understanding of what information about their communications will be obtained, why this information is being obtained, how this information will be used and who the information will be disclosed to. Employees should be provided with this information on joining the organisation, and if monitoring is occasional and not systematic at the outset of the monitoring. In addition, employees should be issued with periodic reminders. For specific types of monitoring such as video surveillance, employees should be informed when the equipment is turned on. Employers have a pro-active obligation to inform employees. Steps that an employer may take include: •

producing an electronic communications policy;

Various things can impact on how intrusive a particular method of monitoring can be. Random and occasional spot checks are less intrusive than continuous monitoring. In addition, automated monitoring such as a system that automatically blocks emails containing obscene language or restricts access to certain websites are generally considered less intrusive than human monitoring. Employers can minimise intrusiveness by ensuring that any human monitoring is done by a senior line manager rather than someone who works closely with the employee.

ensuring the contents of the policy is communicated within the induction process;

setting up IT systems so employees must occasionally read the policy in full before they can access the internet;

data protection training and training to ensure managers are aware of appropriate monitoring techniques;

using workplace surveys to ascertain levels of awareness of the policy; and

Finally, the employer should conduct an impact assessment, which may simply be a mental evaluation, in order to evaluate whether the benefits of monitoring to the organisation outweigh any adverse impact on the employees and to establish whether the proposed monitoring is justified. It is advisable that employers record their deliberation processes for evidential purposes.

having a clause within an employee’s contract setting out that by signing the contract they are giving express consent to the monitoring of any use they make of the employer’s electronic communications systems and to the company processing data in relation to the employee.

Monitoring & the Disciplinary Process A clear balance must be struck between the employer’s need to gather information as part of the investigatory process and the employee’s right to be treated fairly and reasonably. The employer should be careful not to use an investigation as a ‘fishing expedition’ and should avoid reading material that is obviously personal such as private emails and diary entries.

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It must be remembered that an employer can only use the information collected via monitoring for the purposes for which the monitoring was undertaken unless the information reveals activity that no employer could reasonably be expected to ignore i.e. if the monitoring uncovers gross misconduct.

CONCLUSION A carefully drafted legally compliant electronic communications policy is key to ensuring the correct balance is struck between the business's need to monitor communications and the employee's expectation of privacy. This is why we would advise seeking legal advice in this area.


COVERT RECORDINGS YOU CAN’T TAKE YOUR WORDS BACK 8

It is easier now than ever before for employees to record conversations without alerting others that they are doing so. Mobile phones can be neatly stashed in a pocket and recording facilities operated by the swipe of a finger. This inevitably has an impact on employment relationships and tribunals are seeing an increasing number of claimants seeking to introduce into evidence electronic files of conversations they have covertly recorded.

What employers can do to protect themselves:

Can covert recordings be used in evidence? If an employee succeeds in covertly recording a meeting, employers will want to know whether such a recording could be used against them in an employment tribunal claim. It is certainly possible for employees to use such recordings to support a claim, but whether the recordings will be admitted in evidence depend on a number of factors which include: 1. The content of the recording A recording of a meeting where the employee was present for the entire duration of the recording is viewed differently from a recording of a private meeting from which the employee was deliberately excluded.

• Get your policies and procedures in place and make clear that recording hearings is expressly prohibited. • Ensure there are tight security controls around devices brought into the workplace.

For example, in the case of Amwell View School Governors v Dogherty, the Employment Appeal Tribunal (EAT) held that private deliberations after a disciplinary/ appeal hearing made without the knowledge of panel members could not be admitted as evidence in support of the employee’s unfair dismissal claim. The part of

the hearing where the employee was present was, however, admissible in evidence. Similarly, in the case of Williamson v The Chief Constable of Greater Manchester Police, evidence was not admitted of a covert recording of an employer’s private discussions. However, the EAT made clear that this did not mean that covert recordings of private meetings would never be admissible. Although it was not the issue in this case, the EAT suggested that a recording may be admissible in a context where recorded private deliberations were the only, and incontrovertible, evidence of discrimination. 2. Transcripts of the recordings The Courts have highlighted the importance of transcripts of the recordings being available. For example, although in the case of Vaughan v London Borough of Lewisham, 39 hours of recordings were not admitted in evidence, neither the recordings themselves nor transcripts were made available by the Claimant. However, it was suggested by the EAT that the relevant parts of the recordings may be admissible if they were strongly supported by transcripts. As a general summary, covert recordings are likely to be admissible if transcripts of the relevant parts are supplied, unless they relate to private conversations where the


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claimant is not present, but even then they may still be admissible in some circumstances.

How to respond if an employee requests to record a meeting More open employees may actually request to record a meeting and employers will want to know whether they should permit this or not. We would suggest in general that it would be better practice to put other safeguards in place by having a note-taker present on behalf of the employer and allowing the employee the right to be accompanied. If these measures are in place it would be reasonable to reject the employee’s request. If a matter proceeded to litigation and a recording was admitted in evidence, this could increase the preparation time, hearing time and therefore the costs of the litigation. A refusal of such a request would also reinforce the position that no recordings are permitted, whether covert or otherwise.

What can employers do to protect themselves? It is clear that employees may well be able to produce covert recordings as evidence, so what can an employer do to protect itself against such activity? Policies and procedures A starting point is making clear to employees that recording hearings is expressly prohibited. This should be set out in the disciplinary procedure and it may be helpful to remind employees of this at the start of a disciplinary hearing. The same warning could also be included in any other policies which deal with meetings, such as grievances and whistle-blowing policies. Control of devices As employees increasingly bring electronic devices into the workplace, employers may benefit from tightening security around these devices. One way in which this could be done is by the introduction of a

“bring your own device to work” policy. Such a policy would deal with acceptable use, information security, expectations of privacy, the employer’s right of access and issues surrounding technical support and responsibility for running costs. As part of this policy there could be a prohibition on capturing images or audio within the workplace. Together with the disciplinary policy, this could help lay the behavioural ground rules in relation to the use of devices for recording purposes.

Conclusion

Although the risks of admissible covert recordings may be reduced by undertaking the steps above, they remain. Perhaps an employer’s final defence is to carefully consider their choice of words before saying something they may later regret.


BRAINTEASERS

Check your level of employment law knowledge with our quick quiz

1. Which one of the following is true? a) If an employee makes a covert recording it can never be used in evidence against the employer. b) If an employee makes a covert recording they will never need to make a transcript of the recording. c) If an employee makes a covert recording it may be used in evidence against the employer.

2. Which one of the following is false? a) Employers can monitor employees' personal emails at any time without prior warning as employees do not have the right to privacy so long as they have signed a contract of employment. b) Employers must take into consideration the 8 data protection principles in the Data Protection Act 1998 when considering monitoring employees' emails, as monitoring use of email involves the processing of personal data. c) Even if employees have been informed that monitoring will be carried out, they still have an exception of privacy in the workplace.

3. Which one of the following is true? a) It is sufficient for employers to tell employees that their emails are being monitored and it is unnecessary to go into any further detail for the purposes of the Data Protection Act 1998. b) When informing employees that their emails will be monitored, employers need to ensure that employees understand when information about their email use will be obtained, what it is being obtained for, how this information will be used and who it will be disclosed to. c) An employer always needs to obtain an employee's consent before monitoring emails, even if it has informed them that it will do this.

4. Which one of the following is true? a) If an employee sets up a LinkedIn account during their employment, on termination of their employment the account will automatically become the employer's property. b) If an employee contacts clients to try to obtain their business after they have left their employment, the employer will always be able to take legal action against them, even if they did not have restrictive covenants in their contract of employment. c) There is a general principle that restrictive covenants such as non-solicitation of clients are a restraint of trade and so not enforceable, but there are exceptions.

HAVE YOU GOT THEM RIGHT? answers below Answers: 1c, 2a, 3b, 4c. Congratulations if you answered 3 or 4 questions correctly! You appear to have a good understanding of employment law. If you answered less than 3 correctly, please do give us a call to discuss any areas of uncertainty.

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EMPLOYMENT LAW QUIZ


legislation timetable WHISTLEBLOWING

25 JUNE 2013

Change to the definition of “protected disclosure”; for a disclosure to be protected there is to be a requirement that it is made in the public interest (as opposed to personal interest).

UNFAIR DISMISSAL No qualifying period for political affiliation dismissals.

UNFAIR DISMISSAL - COMPENSATORY AWARD

25 JUNE 2013 25 JUNE 2013

The Secretary of State will be given the power to vary the statutory limit on the compensatory award in unfair dismissal claims – this will be capped at the lower of a year’s pay or the existing statutory limit, currently £74,200.

NEW EMPLOYMENT TRIBUNALS RULES OF PROCEDURE

29 JULY 2013

Simplified rules to be introduced to provide for easier case management and greater clarity for all parties participating in the tribunal process.

FEES IN THE EMPLOYMENT TRIBUNAL

29 JULY 2013

Fees will be charged in employment tribunal and employment appeal tribunal cases. This will involve a two-stage fee charging structure, requiring claimants to present an “issue fee” and a “hearing fee”. The amount of the fee will depend on the type of claim.

Protection of Freedoms Act 2012

SUMMER 2013

Portable disclosure and barring checks to be introduced.

“Employee-shareholder” Contracts New employee shareholder status will come into force.

National Minimum Wage The standard adult rate (for workers aged 21 and over) will rise to £6.31 an hour. The development rate will rise to £5.03 an hour. The young workers rate will rise to £3.72 an hour. The rate for apprentices will rise to £2.68.

TUPE 2006 Reform: Consultation Key proposals include the repeal of the regulations relating to “service provision change” (SPC), removing the obligation to provide employee liability information on the transfer of a business/service provision change and providing that “entailing a change in the workforce” includes changes to the workforce location.

CONFIDENTIALITY OF NEGOTIATIONS Pre-termination negotiations will become inadmissible in unfair dismissal cases.

COMPROMISE AGREEMENTS Renaming of “compromise agreements” to “settlement agreements.”

1 SEPTEMBER 2013 1 OCTOBER 2013 OCTOBER 2013 (EXCEPT PROVISIONS RELATING TO SPC) OCTOBER 2013 / APRIL 2014 OCTOBER 2013 / APRIL 2014

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SPOTLIGHT ON OUR SERVICES The competitive edge is no accident! Although talks of recession continue, we can assist you to manage the impact on your business. At Floyd Graham & Co our team of lawyers and HR Consultants have developed a process to help businesses to solve two critical problems at the same time:

uu how to identify and prioritise opportunities for real improvements in business performance, through the implementation of appropriate HR strategies and policies; and uu how to manage the risk of costly litigation associated with non-compliant HR practices. Our HR and legal compliance audit service is discrete, non-intrusive, and confidential and has the following additional benefits for your business:

uu evaluates the effectiveness of HR processes, that is, the extent to which these processes support the business's strategic plan; uu identifies areas where efficiency and effectiveness can be improved, leading to improved bottom line performance; uu minimises the financial, operational and reputational risks associated with inadequate HR policies, processes and documentation; and uu gives owners and managers increased certainty and control and therefore greater confidence when managing your business. It is for these reasons that our clients are keen to recommend our HR and Legal Compliance Audit service, as a visit to our website will confirm.

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Lawyers for today's employers

Fgazette July 2013  

Welcome to FGazette! The quarterly newsletter of Floyd Graham & Co - Lawyers for today's employers. In this month's edition, our focus is on...