Author: Nichola Weir

Covert Recordings – What’s an Employer to do?

It would be wise for employers to recognise that it is becoming more common for what is termed “covert” recording during disciplinary and grievance proceeding by employees. That is, employees are taking it upon themselves to secretly record the meeting, without the knowledge of the other participants.

So, what do the Employment Tribunals say? Are these “covert” recordings admissible or not?

Secret recordings taken by an employee during a disciplinary hearing or a meeting will generally be admissible evidence where all parties are present. Where an employee continues to secretly record, when they have left the room and captures private discussions between the manager and HR, a tribunal will tend to frown on this and not accept this as evidence.

What steps can an employer take?

  • You may want to clearly state in your company policy that employees are not permitted to record meetings.
  • You may want to consider recording all meetings.
  • When meetings are adjourned ask/ensure employees and their representatives take their belongings with them.
  • Ask the employee if they are recording the meeting and if appropriate ask the employee to show you their phone to make sure.
  • And, assume that you are being recorded during the meeting.

Summer events and employees

The Impact of events like the Euro’s, The Edinburgh Festival and the Olympics

As we have entered the summer months’ employees are typically taking their family holidays. This generally means employers need to plan effectively to ensure the business continues to deliver despite cover being low.

In addition to the above, we recommend employer’s give some thought as to the impact of events such as Euro’s, The Edinburgh Festival and the Olympic Games on attendance rates. It is important employers are mindful of the potential impact of these events on your business, if not managed effectively.

We recommend employers have policies and procedures in-place for requesting holidays which have been clearly communicated to employees. Not only does this support fairness and consistency when dealing with holiday requests, but it also informs the employee thus managing their expectations.

Where possible the business might be able to operate a form of flexible working to ensure the needs of the business are met while accommodating the employee’s request, although many will not have the luxury. If, however, this is something the business can accommodate strict criteria as to how this is applied and the qualification(s) should be clearly communicated to employees and consistency in the process ensured.

Other considerations include absence rates. Some employees may call in sick during these times either to watch a sports event or see a show particularly where a holiday request has been denied or they have exhausted their accrued holiday entitlement.

Having a robust sickness absence policy, which has been communicated informs employees of the rules and that absence is monitored by the company. Furthermore, the use of return to work meetings reinforces this message and allows you to probe further into their reason for absence where you have your suspicions.

You may find productivity dips as employees talk about these social or sporting events during working hours. Another thing to watch out for is checking for updates or to buy tickets online during working hours. Also, watching sports events on a personal device during working hours is more common that you may think. Again, you need to make it clear to employees what is and isn’t acceptable for the workplace and that any breach will be dealt with under the disciplinary policy.

Often the consumption of alcohol goes hand in hand with watching sports events or if you go to see a show it’s often followed by a couple of drinks. As a result, you may find employees don’t present themselves for work due to over indulging in alcohol the night before, or; they come to work in an unfit state due to still being under the influence of alcohol. This would result in an employee being sent home which leaves you under resourced, having the potential to affect business delivery.

It therefore pays employers to clearly communicate and re-iterate policies and procedures to employees, observe how productive employees are when they are in work and effectively plan the resources (including any necessary contingency plans) the business requires to maintain delivery.

Psychoactive Substances Act 2016

With effect from 26th May 2016 the Psychoactive Substances Act 2016 came into force. The purpose of the legislation is to address the problem of, “legal highs”. These psychoactive substances simulate the mind altering effects of illegal drugs which can affect behaviour and performance (See the Misuse of Drugs Act 1971 for details).

With an increase in sales of psychoactive substances we are recommending companies include the use of these substances in their drugs and alcohol policies as there is a real risk this could impact on the workplace.

Drugs and alcohol tests employed by companies establish if the employee is in breach of the drugs and alcohol policy at work. In the case of psychoactive substances, the tests won’t always detect if an employee has consumed them. It is therefore important you are clear in the policy and focus on the effects the psychoactive substances have on an employee’s behaviour and ability to work as opposed the substances themselves.

Much like drugs and alcohol misuse, the misuse of psychoactive substances should be treated in a similar way. It is recommended companies offer occupational health support and counselling. Another consideration would be to provide training to employees to explain what psychoactive substances are; their effects, and the support available. You should also consider amending your capability and disciplinary policies to cover the effects of psychoactive substances in the workplace.

It is important that should an employee be dismissed that the reason for the dismissal is clear i.e. Is the reason for dismissal, misconduct for taking the psychoactive substances, or; is the reason capability as a result of taking the psychoactive substances. Where the employee’s performance is effected by consuming psychoactive substances, Employment Tribunals are likely to take a dim view of the employer, if they are seen to rush through the process as the employee needs time and support to improve.

So we recommend companies adapt policies to cover psychoactive substances and their effect on employees in the workplace; ensure support mechanism are in place to help facilitate recovery, and; educate employees and line managers as to the signs of psychoactive substances use.

If you need any support amending your policies to include the effects of psychoactive substances, please contact one of our team.

Zero-Hour Contracts Update

Zero Hour Contracts Update

In May 2015, there were changes to legislation regarding exclusivity clauses in Zero Hours contracts. Specifically, that where employees were engaged on a contract of employment which did not guarantee a weekly income it was deemed unlawful to include a clause in the contract of employment which stated the employee could not seek employment elsewhere for the aim of securing an income.

However, until now it this has been unenforceable. From 11th January 2016, it is a day one right employees can raise a claim for unfair dismissal where they: are dismissed because they are employed elsewhere; seek employment elsewhere or; are subject to detrimental treatment as a result of their employment elsewhere, as opposed to the usual 2 years’ service required to raise a claim. A key piece of evidence an employment tribunal will look for will be if there is such an exclusivity clause in the claimant’s contracts. Furthermore, compensation that could be awarded, will be at the discretion of the tribunal, determined by what is deemed to be just and equitable in the circumstances.

Employers should therefore be mindful that having an exclusivity clause in a zero hours employment contract is not binding and the employee can disregard it. Employers cannot avoid this ban by including a clause in the employment contract stating the employee must seek permission before engaging in employment. Therefore, should employers have employees on a zero hour’s contract which contains an exclusivity clause currently, it might an idea to issue those employees a new contract of employment without this clause.

If you would like further guidance on this please do not hesitate to contact myself or another member of the team.

Avoid an HR headache this Christmas

Christmas is here and it’s time to celebrate. Companies are keen to show their appreciation for their employee’s hard work by throwing the company Christmas party.

This is a good opportunity for employee’s to get together, build relationships and let their hair down which is great for morale building. Sometimes, of course the harmony is broken with the result being a pile of disciplinary and grievances to face on Monday morning. Sexual harassment is the claim most likely to be raised at this time of year which is covered by the Equality Act (2010), however, other forms of harassment to look out for include sexual orientation, gender reassignment, religion or belief, race, disability, gender and age.

Below I have outlined some points you may want to consider when planning your Christmas party:

1) Remind employee’s it is a company event, and as such, they are representing the company. You may wish to re-issue your company code of conduct or disciplinary policy.

2) Think about where you are having your Christmas event. Can employees get to and from the venue safely? You may want to provide transport, or ensure there are bus routes and taxi’s available. Remember your duty of care for employees extends to the Christmas party.

3) Ensure you don’t discriminate against any of your employees i.e. some religions have restrictions on what they can eat and drink, so make sure you cater for their needs too. Also, ensure the venue have access for employees with disabilities?

4) Plan when you are having the party. If employees are expected to work the next day ensure they are aware of their obligation to turn up for work the next day and that failure to do so could result in disciplinary action being taken against them.

5) While it is nice to offer a free bar, this generous act could be seen as encouraging excessive drinking and consequently condoning disorderly behaviour. This is another good reason to ensure there are plenty of soft drinks available.

Excessive drinking has the potential to lead to inappropriate behaviour which may include telling the boss exactly what they think of them; unwelcomed advanced from co-workers; verbal and even physical altercations. Also, ensure those under the legal limit for alcohol are sticking to the soft drinking.

By following these simple steps you will reduce the likelihood of any incident at your Christmas party, ensuring a good time is had by all.

Have a wonderful Christmas & New Year.