Welcome to the first edition of LookOut, Anderson Strathern's regular update providing you with news and views on employment law.

In this edition we look at recent legislation updates, including the first prosecution under the Bribery Act 2010, as well as recent cases highlighting the impact of social media in the workplace, and a run-down on the latest position in relation to the public sector industrial action which is planned for the end of the month.

LookOut on……cases
A tweet or a twit?

OOPS “usual rubbish about equal opportunities…”

LookOut on….. the public sector
The biggest mobilisation of industrial action for a generation

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LookOut on…legislation

Default retirement age has been retired

The phasing out of the default retirement age (“DRA”) was completed on 1 October 2011. Employers will now no longer be able to use the DRA to compulsorily retire employees, unless the employer can show that having a compulsory retirement age is a proportionate means of achieving a legitimate aim. It is thought that the circumstances in which employers will be able to objectively justify a compulsory retirement age will be few and far between.

AS view…

Now that the statutory power to retire employees at age 65 has been removed, good management practice will become increasingly important in dealing with an ageing workforce, particularly where there are concerns regarding performance or capability due to health. Employers will have to be careful not to treat older employees differently as their years advance and robust performance management throughout the employer’s organisation is likely to be key. Statistics released by the Employment Tribunal Service show that age discrimination cases are rising - a total of 6,800 age discrimination claims were raised between April 2010 and March 2011, a 79% increase in comparison with 2008/09 figures, and a 32% increase from 2010. The removal of the DRA is unlikely to reverse that trend in the near future.

First prosecution and conviction under the bribery act

The Crown Prosecution Service has secured the first conviction under the Bribery Act 2010 which came into force on 1st July 2011. Mr Patel, worked as an administrative clerk at Redbridge Magistrates’ Court, and is alleged to have promised an individual who had been summonsed for a motoring offence, that he could influence the outcome of the proceedings in exchange for £500. Mr Patel was found guilty under section 2 of the Bribery Act for requesting and receiving a bribe with the intention of performing his functions improperly. Sentencing is due to take place on 11 November 2011.

AS view…

Although this case relates to the prosecution of an individual under the Bribery Act, organisations should take note that employers who fail to put in place adequate procedures to prevent those associated with it (such as employees) from committing acts of bribery are also guilty of an offence under the Act - one which is punishable with an unlimited fine. Now is the time for organisations who have not already done so to put “adequate procedures” in place to ensure that they have a potential defence to any prosecution under the Bribery Act. Being proactive is the key as it will be very difficult for an organisation to avoid prosecution if it has not put reasonable steps in place to prevent a breach. This is likely to include training of appropriate staff. For further information on the Bribery Act and essential proactive steps for employers please contact Murray McCall or Alan Masson.

Coalition confirms ‘radical’ changes to tribunal regime

Under the current regime employees must be employed for a continuous period of at least one year before they qualify for the right not to be unfairly dismissed. From 6 April 2012 this period will increase to two years. The government sees this as a means to help small businesses through the tough economic climate but the change applies to all employers irrespective of size or resources. The thinking is that this will encourage employers to take on new staff as it will be easier for them to dismiss employees with less than two years service.

AS view…

The increase in the qualifying period to claim unfair dismissal is expected by the government to reduce the number of Tribunal claims for unfair dismissal by about two thousand per annum. However, in cases of discrimination or whistleblowing there is no qualifying period. Are we therefore likely to see an increase in the number of those claims no matter how weak? The introduction of fees in the Tribunal, repayable on success, which is also under consideration may go some way to solving that potential problem.

Are the changes all that radical? The qualifying period for unfair dismissal claims was decreased from two years in 1999 by the then Labour government. Before that in 1981 and then again in 1991 the two year qualifying period was subject to legal challenge. The House of Lords decided then that it was indirectly discriminatory to women but objectively justifiable at the time as a means of achieving a legitimate aim. Thus the challenge failed, on both occasions.

A future challenge might be successful as the objective justification test turns on what statistical evidence is available at the time. In recessionary times the Courts may decide that the increased period achieves a legitimate aim of employers taking on new staff and reducing the number of unfair dismissal claims with an estimated saving for UK businesses of some £6M per year. What happens if (and hopefully, when) there is a recovery of the economy - will a two year qualifying period still be justifiable?

LookOut on…cases

A tweet or a twit?

A recent spate of Tribunal cases has highlighted the increasingly blurred line for employers concerning the use of social media in the workplace. Are social media essential modern day commercial tools or the source of a credible business risk?

In Preece v J D Wetherspoons P, a shift manager, and her colleague were subjected to verbal abuse and physical threats from known customers one evening at work. At the time P managed to diffuse the potentially volatile situation in a professional manner and avoid the trouble escalating into something more serious. However, soon after (and while at work) P posted on her Facebook page about the incident (in the mistaken belief that her privacy settings were set to private). This lead to a number of posts, including some derogatory and abusive comments about the customers that had been involved in the incident. These posts were viewable by her ‘friends’ including customers. Following a report to J D Wetherspoons’ customer services P was summarily dismissed. The Tribunal held the dismissal to be fair as, amongst other reasons, the company’s handbook was clear on its policy on ‘E-mail, Internet and Intranet’.

In Stephens v Halfords plc S, a deputy store manager with a clean disciplinary record, posted a page on his Facebook entitled ‘Halfords workers against working 3 out of 4 weekends’ after consultations into a reorganisation to which S had been party. On subsequently becoming aware of the company’s social media policy, which stated that ‘employees who make public statements about the company that are not in its best interests, or who actively encouraged dissent, will face disciplinary action’ S took down the page but, unfortunately for him, not before his employer became aware of his posting. H commenced disciplinary proceedings resulting in summary dismissal for breach of trust and the social media policy. The Tribunal however held that no reasonable employer would have summarily dismissed and found the dismissal unfair. S had immediately apologised for his error, took down the offending page and reiterated that he thought the information posted was suitable for the public domain. This, according to the Tribunal, led to the employer’s sanction not satisfying the reasonableness test and thus made the dismissal unfair.

AS view…

These two cases demonstrate a now accepted principle regarding the modern usage of social media in the workplace and the importance of a clear and concise social media policy that is communicated to all employees. However they also demonstrate that having a policy is not enough; the policy must be enforced reasonably. This is not necessarily a clear cut exercise as demonstrated by these cases.

ACAS has recently published guidance on social networking in the workplace: http://www.acas.org.uk/index.aspx?articleid=3375. Employers should not only seek advice on the drafting of social media/networking policies but also on their application. Failure to do so could mean that instead of social media policies being ‘tagged’ as an effective means to increase brand awareness and productivity, they become a costly exercise ‘poking’ at employers not ‘linked in’ to their correct application. If you would like assistance in drafting a social media policy please contact Chris McDowall or Andrew Brown.

Oops... "usual rubbish about equal opportunities..."

A job advertisement published on a NHS website last month attracted considerable interest after visitors to the site noticed it ended with the phrase “usual rubbish about equal opportunities employer etc”. While this may be what many think about advertisements for public sector jobs, the NHS Trust involved were quick to release a statement stressing that the comment did not reflect its view of equality issues to which it was fully committed! The advertisement has since been updated and the offending statement removed.

AS view…

It is not difficult to envisage how this mistake came about and serves as a reminder of the care that should be taken when drafting job advertisements. Careless or inappropriate wording can leave employers open to discrimination claims from deterred or unsuccessful applicants. For anyone already pursuing a tribunal claim, it could also arguably be indicative of an employer’s discriminatory culture or at best a blasé attitude to equal opportunities. Aside from this, an employer which publishes an advert deemed to be discriminatory may face enforcement action from the Equality & Human Rights Commission. It might also make it difficult to argue that there is a real desire to promote equality of opportunity as required under the Public Sector Equality Duty!

LookOut on… the public sector

The biggest mobilisation of industrial action for a generation

On 30 November 2011, the country faces what has been described as the biggest 24–hour walkout since the 1926 General Strike. The industrial action, which could potentially involve 3 million public sector workers is in response to the Government’s plans to increase pension contributions by about 3% for millions of public sector workers, in an attempt to save £1 billion in 2012 - 2013.

Brendan Barber, the TUC General Secretary has said: “The intention will be to take the call for pensions justice for both public and private sector workers to every corner of the land on that day in the biggest trade union mobilisation in a generation.” Downing Street has described industrial action in the current financial climate as “irresponsible” and has warned that pensions are no longer affordable as people are living longer. The Chancellor George Osborne has said: “I would urge the trade union bosses: don’t take this deeply irresponsible action at a time when Britain and the world face real economic problems. Don’t take deeply irresponsible action that is going to damage jobs, damage prosperity.”

Recent talks between the TUC and Government ministers have failed to prevent the impending strike which could potentially involve nurses, careworkers, teachers, prison officers and fire-fighters. It remains to be seen whether the Government and the TUC can arrive at an agreement prior to the planned walkout. There may, however, be some progress today as Ministers are set to make an "enhanced offer" to unions in a bid to get the pension changes agreed. It is understood the offer will focus on more generous accrual rates and higher "cost ceilings" - the limit on contributions paid by the Government. For further information please contact Pamela Keys or Barry Nichol.

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.