Has your employee social media policy kept pace with business practice?

When did you last review or update the policy on social media use for your employees? Does it reflect the way that social media is being used on a day-to-day basis in your organisation?

Deploying social media is now deeply embedded in many employees’ job descriptions, whether for the purposes of promotion and marketing, recruitment or communicating with customers and suppliers.

‘Use of social media is no longer confined to the marketing team, and employers need to manage the risks that come with wider access to such a powerful tool. Employees’ use of social media creates a wide range of potential liabilities for any business, from making your business vulnerable to losing important contacts through to problems accessing your own accounts when employees leave.’

Although it appears to be an informal means of communication, extracts from social media accounts regularly appear as evidence in courts and tribunals these days. Employers whose staff engage in any social media activity on behalf of their business should give employees clear guidance on expectations. You may need to be clear about which individuals can use social media on behalf of the company and which need to get prior authority before posting anything.

I highlight a few of the risks to consider in deciding whether you need to review any contractual terms, policies, templates, and training.

Who owns the work account?

The legal ownership of each social media account will be determined by the terms of the provider. For example, LinkedIn’s terms state that the account holder owns the account.

It is not uncommon for employees to set up work accounts on behalf of an employer using their own login credentials, but your policies need to ensure that ownership remains with the organisation and passwords are shared or transferred as part of an exit process.

Who owns contacts gathered via social media?

The courts have found that the contacts gathered by an employee on a work account during employment belong to the employer.

It has long been established that departing employees cannot take a database of their employer’s contacts with them to use to compete against them. This principle was applied in the social media age in Whitmar Publications v Gamage [2013]. A former employee was ordered by the High Court to give her previous employer the login details of four LinkedIn groups that she had managed for the employer. The former employee had used the groups to promote a new business that she and two other former colleagues were setting up. This case provides some comfort for employers, but case law in this area is only in its infancy.

Using personal accounts

The situation becomes less clear when employees use their personal accounts for work purposes, for example where the employee already has a number of relevant contacts and they use the same account for work and personal purposes. Employers should set clear boundaries for the employee’s use of personal social media accounts for work purposes. To avoid blurring of lines and risking losing business contacts, you could decide that this is not permitted. This needs to be made clear to employees in a policy, as discussed later, and could also be included in employment contracts.

If you do allow the use of personal accounts, your policy should state that any business connections made while working for you belong to the company. The policy should make arrangements for providing that information when they leave and require them to delete the information from their account, without copying. This may be difficult to enforce, particularly if it is hard to determine which contacts were made through work-related activities and which in their personal capacity or through a previous employer.

What to address in your policy

We recommend having a social media policy, which is implemented through training at induction and with regular updates.

The policy needs to be reviewed regularly and should tie in with other relevant policies, such as:

• data protection;
• confidentiality;
• equality, diversity, and inclusion; and
• IT and electronic communications.

This should address issues you expect to see in any social media or communications policy, for example not to make any discriminatory posts, and should also give guidance on the use of social media for company purposes.

There are many risks to a business through employees’ online activities, which the policy can address as relevant to your business. Although not exhaustive, here are some of the issues to consider:

• Employees need to be respectful and professional at all times online. Aside from reputational damage, an online spat with a competitor or making degrading comments about a previous supplier could risk claims of defamation or even malicious falsehood.
• Employees may need to be informed about not engaging in false advertising or unethical marketing practices such as posting fake reviews.
• In their eagerness to share good news involving a third party, such as a potential new deal, investor, business associate or customer, employees need to be careful to ensure that they do not breach confidentiality, data protection law, the terms of any non-disclosure agreement relating to negotiations or endanger legal privilege. Employees also need to protect the confidentiality of the employer’s sensitive business information, such as relating to the performance of the business.
• Employees should take time to read the small print on the social media sites to ensure that they comply with the terms of use.
• When reproducing text or copying a similar trade mark or brand, employees need to be aware that if they do so without the consent of the owner, they could infringe intellectual property rights.
• If comparing other businesses to advertise your services or products, employees need to ensure that they comply with the rules on comparative advertising.
• Employees should use the company social media account and use a work email address to open up accounts such as LinkedIn. The employee should share the access details with a colleague so that they are not the sole gatekeeper to such a powerful asset. Make clear that the account belongs to the employer and that the connections made through that account are part of a database of information belonging to the employer.
• If the employee is allowed to use their personal account, you should set out any conditions for this – such as requiring them to make it clear when they are posting on behalf of the company and when they are posting in their personal capacity.
• A crucial practical step that will help protect your business is to ensure that the up-to-date login details are shared with the employer – especially on departure.
• Depending on the business, employees could also be required to add contacts made through social media to a database held by the employer.

Contractual provisions

In addition to having a well-drafted policy, relevant contractual provisions need to be fit for purpose and bespoke to your business, rather than using outdated, generic clauses.

Clauses that may be in need of a refresh include confidentiality and data protection. If there is a risk that the employee could use the contacts after their employment has ended to compete or lure away customers, a restrictive covenant limiting what they can do for a specific time could give you further protection. This can include specific requirements in relation to social media accounts.

Contractual rights allowing you to restrict employees’ work activities during notice periods – garden leave clauses – can serve a similar aim to a restrictive covenant.

How we can help

We can help with ensuring your policies and contracts, as well as your ways of working, protect your business as its use of social media evolves.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Relocation: navigating the risks and pitfalls for employers

Due to changes in ways of working since the pandemic or in response to the economic slowdown, some employers are downsizing their premises and asking employees to relocate to new premises or hubs.

Even if the change in location only involves a short distance, employers need to consider the impact this will have on individual employees. Any relocation programme needs to be well planned and to include plenty of time to consult with staff. Employers may need to brace themselves for loss of staff and the risk of unfair dismissal claims. As the closure of a place of work is categorised as a redundancy situation, in some circumstances, employers may also need to budget for redundancy costs.

Contractual mobility clause

The employees’ contracts of employment may contain a mobility clause that allows the employer to change the place of work. Occasionally, this is implied into the contract. Either way, this does not give the employer carte blanche. Firstly, the wording needs to be carefully checked to understand the scope of the right, for example it may only allow relocation within a reasonable commuting distance. The wording also needs to be clear.

Secondly, the employer’s right to insist on relocation may be curbed by the implied term of trust and confidence, which stops the employer acting in a way that seriously damages or could seriously damage the relationship between the employer and employee, without having a good reason. Whether this is breached will depend on the individual circumstances.

For example, there may be a breach if the change of location requires:

• the employee to move house;
• children to change school;
• a partner to change their job; and
• it was not strictly necessary for the employee to change work location, or the impact could have been lessened by hybrid working.

A breach could allow the employee to resign and claim constructive dismissal if they have two years’ service.

Thirdly, an employer needs to enforce this clause in a reasonable way. Usually, that involves discussion with the individual and giving plenty of notice. For example, if the employee will have a longer commute, it may be helpful to offer flexibility with working hours to travel at the optimal time of day or to allow working from home on some days.

Finally, insisting on the employee relocating under a mobility clause must be done in good faith and not done in an ‘arbitrary, capricious or irrational’ way. Provided there is a business reason for moving the location (such as being unable to extend the lease of premises), this hurdle should be cleared.

Mobility clause and employee refuses

If the employee resists the move, even though the contract allows the employer to require the employee to relocate, the employer may have to dismiss the employee for failure to obey a lawful instruction. If the instruction was not in breach of contract, the dismissal for misconduct should be fair and the employee would not be entitled to a redundancy payment.

No mobility clause and workplace still operating

Where the existing workplace is not being closed but some employees are required to relocate, without a mobility clause the employer cannot insist on the employee relocating. The employer needs the employee’s agreement to the change through a consultation process. We can help you ensure that this consultation exercise covers all the necessary elements, including ways of mitigating the impact on the employee. This will improve your chances of successfully defending any unfair dismissal claim, should you have to dismiss an employee who does not agree to relocate at the end of the consultation. We can also advise you on whether or not the circumstances trigger the requirement to consult collectively, as well as individually.

At the end of the process, if the employee still resists, they should be offered a new contract with the new work location and be dismissed from their current contract. This process is commonly referred to as ‘fire and rehire’. The Government is currently considering responses to its consultation on a draft code of practice that would apply in these circumstances. It is not known yet when this code will come into force. As and when it does, employers will need to comply with its requirements or risk any compensation being increased by up to 25 per cent.

No mobility clause and close of workplace

If the trigger for the relocation is that the business will stop operating from the current premises, this is likely to fall within the statutory definition of a redundancy. There may be some uncertainty around the employee’s place of work, for instance if they work at two bases. We can discuss this with you.

If the circumstances fall within the definition of redundancy and there is no suitably worded mobility clause, the employer should follow a fair redundancy process. The same job at the new workplace could be offered to the employee as a suitable alternative. If the employer makes a suitable offer in accordance with the statutory requirements and the employee unreasonably refuses this offer – and that will depend very much on their individual circumstances – the employee would not be entitled to a redundancy payment.

Discrimination issues

The consultation exercise should address any individual circumstances that could create a discrimination risk. This could involve reasonable adjustments for a disabled employee or the impact of the move on childcare arrangements for a female employee. Employers need to be alert to these issues. Please talk to us if these issues come up.

How we can help

A relocation programme can be disruptive and may create the risk of employment tribunal claims and loss of staff. We can help you ensure that it is well planned, and the risks are mitigated as far as possible, to minimise the negative impact on your business.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Tempted by the four-day working week trial for your business?

One story which received a great deal of media coverage earlier this year was the publication of the results of a six-month trial involving around 2,900 workers who had moved to a four-day working week. The organisers of the UK trial heralded it as a success, and maybe you have been wondering if this could work for your business?

It is important to point out that this was not a trial led by the Government, nor did it investigate compressed hours where employees work their usual weekly hours over four days.

The trial was organised by campaigners and researchers, who offer consulting to companies who wish to implement a four-day working week. The experiment was based on the 100-80-100 model; workers receive 100% pay for working 80% of their previous hours and commit to maintaining 100% productivity.

The models

There were 61 organisations which volunteered to take part and while some organisations closed one day a week, participating employers adopted different models. Organisations that needed to maintain five-day coverage used staggered days off, or employees ‘buddied up’ with a colleague with similar skills and covered each other’s day off.

Businesses with strong seasonal demand opted for annualised hours. Others adopted a ‘decentralised’ approach, allowing each department to work out the best model for its needs. Others made continuation of the scheme for specific divisions of the business conditional on that division meeting its key performance indicators (KPIs).

The results

After the trial ended, 92% of the organisations continued with the arrangement, many to assess its impact over a longer period. By publication of the report, 18 had adopted it permanently. This outcome needs to be considered in the context that the participating organisations were self-selecting volunteers who received support to implement the change in their business.

Positive impact

The report on the trial notes an improvement in employee wellbeing with 39% of employees saying that they felt less stressed at the end of the trial and 71% reporting reduced levels of burnout. They also reported significant decreases in employees leaving and absence rates.

Only 23 of the participating organisations provided data on changes to revenue, reporting an average 1.4% increase in productivity over the six-month trial period.

Downsides

This may not be a realistic option for many businesses, for example it may not be affordable to recruit more staff or pay more overtime, which increases the wage bill to facilitate the time off. Businesses who need to ensure continual cover may have particular difficulty, particularly once absences due to annual leave and sickness are taken into account. Managing the working hours and sufficient cover, as well as monitoring performance or other KPIs, is likely to use up management time and create administrative challenges. For example, the trial did not consider customer satisfaction.

These arrangements may not achieve one of the desired outcomes of improved employee wellbeing, in fact they could have the opposite effect for some people. Although the principle is that employees will work more efficiently, for instance by jettisoning unnecessary meetings, those with intense workloads may struggle to get everything done in reduced hours.

Some employers may find that the four-day week works in some parts of the organisation but not others. This presents a difficult decision in weighing up the benefits in some parts of the business against the likely overall damage to morale and cohesion among the workforce.

Legal implications

There are a number of legal issues to consider when introducing the four-day week, whether as a trial or permanently.

Contractual changes

Contracts of employment will need to allow for the new working arrangements. Flexibility clauses may allow the employer to make the changes, but these still need to be brought about in a reasonable way. If there is no flexibility in the contract, employers need to agree changes to working hours and patterns with the employees. Some employers may need to introduce a requirement for employees to work shifts or work overtime to provide cover for colleagues. Employers need to factor in the time and resources to consult with staff to seek their agreement. Changing working hours and patterns could affect childcare arrangements or arrangements staff have in place to help accommodate a disability. Care needs to be taken when introducing changes to address individual circumstances. Failure to do so could be discriminatory.

Employers looking to run a trial should make it clear to employees that this is just a temporary measure. You will need to ensure that the contractual changes give you the option to change back to the previous working hours at the end of the trial.

Part-time workers

Part-time workers are protected from less favourable treatment compared to full-time employees. To ensure that they are fairly treated, options are available such as reducing their hours pro rata or increasing their pay. Otherwise you could risk an employment tribunal claim.

Double jobbing

Faced with the cost-of-living crisis, some employees may use their day off to take on a second job. This could lead to fatigue, particularly if the pace of their main job has increased since the four day-week was introduced, which could potentially reduce the individual’s productivity. In some settings, such as healthcare and construction, tiredness can present a danger to the health and safety of the worker and others. When checking for compliance with the rules on working time and rest breaks, employers must take into account work done with other employers.

We can check if your contracts address this situation and discuss how to introduce provisions to, at the very least, require employees to tell you about a second job. For some roles, the contract should address conflicts of interest and confidentiality issues that could arise.

Holidays

Employers may wish to reduce the total number of days annual holiday allowance to reflect the reduced number of working days. This contractual change needs to be agreed as part of the package of changes. Where employees work different days of the week, such as on a staggered arrangement, we can work through with you how to take account of public holidays.

How we can help

If you are considering piloting a four-day week or restructuring your working arrangements, we can help you to evaluate the different options for your business.

Once you have selected a model, we can help you to work through the implications of the new arrangements and a trial to ensure fairness for all staff, providing clarity and a smooth transition, as well as giving you the option to reverse the decision.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Mental Health Problems a Disability under the Equality Act?

Disability

• What is a disability?
• What if I’m getting medication or treatment for my mental health problem?
• What if I had a disability in the past?
• Checklist: Is my mental health problem a disability?

What is a disability?

You have to show that your mental health problem is a disability to get the protection of the Equality Act.

‘Disability’ has a special legal meaning under the Equality Act, which is broader than the usual way you might understand the word. Even if you don’t think you have a disability, the Equality Act may protect you from discrimination if your mental health problem fits its definition of disability.

The Equality Act says you have a disability if you have a physical or mental impairment that has a substantial, adverse, and long-term effect on your ability to carry out normal day-to-day activities.

The focus is on the effect of your mental health problem, rather than the diagnosis. So you need to show that your mental health problem:

• has more than a small effect on your everyday life
• makes things more difficult for you, and
• has lasted at least 12 months, is likely to last 12 months, or (if your mental health problem has improved) that it is likely to recur.

Examples of ‘substantial adverse effect’

Simon has obsessive-compulsive disorder (OCD). He has to check and recheck whether lights are switched off and doors are locked. This can make him late for work or other appointments. His obsessive thoughts often distract him from activities that he is doing and disrupt his daily routines. His mental health problem therefore has a substantial adverse effect on the way he does things.

Examples of ‘long term’

• Jenny has had depression for 10 months and the doctor says it will be likely to last at least another 4 to 5 months.
• Selina has bipolar affective disorder. She had her first and second episode in January 2013, then a third episode in January 2014. Even though there was a gap between her second and third episode, her mental health problem is considered to have continued over the whole period (in this case, a period of 13 months).

What if I’m getting medication or treatment for my mental health problem?

If you are getting some treatment or taking medication for your condition, you ignore the effect of your treatment when deciding whether your condition is having a substantial, adverse effect on your daily activities. This means the law is looking at how your condition affects you without your treatment or medication.

Example

Mohammed has long-term anxiety and is being treated by counselling. Anxiety would normally make him find simple tasks difficult. Because he has counselling, he is able to get up and go to work.

The Equality Act says you have to ignore his treatment in deciding whether his mental health problem has a substantial adverse effect on his day-to-day activities and so he has a disability.

What if I had a disability in the past?

You are still protected from discrimination if you had a disability in the past. That means that if your past mental health problem had a substantial, long-term and adverse effect, you will get the protection of the Equality Act.

Examples

Four years ago, Mary had depression that lasted 2 years and had a substantial effect on her ability to carry out normal day-to-day activities. She has not experienced depression since then.

If Mary is treated worse by her employer because of her past mental health problem, she will be protected by the Equality Act.

Checklist: Is my mental health problem a disability?

You can ask yourself these questions:

1. Do I have a mental or physical health impairment?
2. Is it long-term (meaning lasting more than 12 months or likely to do so)?
3. Does it have a more than minor adverse effect on my day-to-day living, if I discount my treatment or medication?

If you answered “yes” to all three questions, then your mental health problem could get the protection of the Equality Act.

If you want to get the protection of the Equality Act, you may find it helpful to get some evidence from your GP, or another medical professional. You can ask them to write a letter saying whether they think you have a disability under the Equality Act. It would be particularly useful if they can give their opinion on the answer to each of these three questions.

Example

Esra doesn’t consider herself disabled because she doesn’t receive disability benefits and she is physically healthy.

Esra has been living with an anxiety disorder for the past 3 years. Because of this, it takes her a longer time to do things like get up in the morning, dress herself for the day and do the shopping. She takes medication to control the symptoms.

Esra would be protected by the Equality Act because she has:

• a mental impairment – an anxiety disorder
• it is long term – she has had it for the past 3 years
• it has a substantial effect on her daily life – her mental health has a major effect on her daily life when you ignore the effect of her medication
• it has an adverse effect – her mental health problem makes things more difficult for her.

This note which is not intended as legal advice by guidance only is the courtesy of Mind Home – Mind