What’s new for October 2011?
The key employment law changes taking place on 1 October 2011 are:
Agency Workers Regulations 2010
The Agency Workers Regulations 2010 will come into force. Their aim is to ensure that after a 12-week qualifying period agency workers receive the same basic working and employment conditions, including pay and holidays, as if they were employed directly by the end-user client. The Government has also published guidance to assist temporary work agencies and end-user hirers to implement the Regulations. It can be downloaded from the Department for Business, Innovation and Skills’ website.
Increase in National Minimum Wage
- The adult rate (for workers aged 21 and over) will increase by 15p from £5.93 to £6.08 per hour.
- The rate for workers aged 18-20 will increase by 6p from £4.92 to £4.98 per hour.
- The rate for workers aged 16-17 will increase by 4p from £3.64 to £3.68 per hour.
- The rate for apprentices will increase by 10p from £2.50 to £2.60 per hour.
Social networking: ACAS Guidance published
Social networking is an everyday feature of modern life including in the workplace. Employers should be alive to the use and potential for misuse of social networking media at all stages of the employment cycle from recruitment through to termination and have appropriate policies and practices in place. For example employees should be advised of the extent to which use of social networking sites during office hours is permitted, if at all, and should be reminded on a regular basis. Dismissing for excessive use where an employer had not made its policy clear or where it has been inconsistent in the treatment of if its employees, could lead to a finding of unfair dismissal.
ACAS has recently produced a number of fact sheets on managing the impact of social networking including in the context of recruitment and disciplining employees. This can be found on their website.
Teacher unfairly dismissed after accessing dating website during lesson
Dating websites – if you’ve used one, you’ll be familiar with the compulsion to check your account to see whether that dream girl/guy has sent you a message (and, preferably, a picture). But should you check your dating account at work?
Mr Bates was head of religious studies at Dowdales School and had an excellent record save for some run-ins with the head, Ms Moffatt, and Ms O’Connor, another teacher, in his role as a trade union representative. Mr Bates had been in dispute over Ms Moffatt’s failure to inform him that a new recruit would be teaching religious studies despite being the head of religious studies. She had also requested an occupational health report on him without his consent after he had had a period of sick leave for stress.
On Mr Bates’ return from a period of sick leave, Ms O’Connor complained that he had been using his school laptop inappropriately during lessons, accessing an online dating service called Guardian Soulmates.
Ms Moffatt didn’t have a positive view of teachers using dating websites, and thought (somehow) that Mr Bates’ membership of the site could bring the school into disrepute. An investigation uncovered that Mr Bates had accessed the website for a maximum of 15 seconds during a lesson, apparently while pupils had been watching a video. The school suspended him and began disciplinary proceedings.
The deputy headteacher, Mr Sinton, investigated. He interviewed Ms O’Connor, who raised doubts about Mr Bates’ planning of work, professional behaviour and relationships with colleagues and the appropriateness of some of his actions during a school trip. Mr Bates explained that he had fallen behind with marking, but that this had been caused by his sickness absence and his heavy workload. He said that he generally got on well with other staff except Ms O’Connor and asked Mr Sinton to look at her accusations in light of the personal animosity between them.
The HR manager, Ms Rees, reviewed the record of the investigation and advised that many of the accusations about Mr Bates’ behaviour that had been made during the investigation should be removed because there was no evidence to back them up. Despite this recommendation, the disciplinary hearing went ahead with all the charges.
Ultimately, the school decided to dismiss Mr Bates for his actions. One of the disciplinary panel members later told the tribunal that the content of the dating site “painted a seedy picture of someone sending sexual messages”, and “the potential for damage [to the school] was enormous”. Mr Bates appealed the decision and despite requesting information on the sanctions given to other staff who had breached the school’s policy on computer use, this was not provided. The appeal was unsuccessful and Mr Bates claimed unfair dismissal.
In his claim for unfair dismissal, Mr Bates argued that teachers regularly accessed their home email on their school computer while at work. He said that he frequently worked at home in the evenings and emails would pass between his home and work email accounts. He had never been criticised for accessing his personal emails at work and saw nothing wrong with doing this while his pupils were watching a video. He felt that he had been treated differently to other members of staff, giving the example of one who had been spoken to informally about accessing Facebook while at work and another who had been given a final warning for looking at an “inappropriate” website while at school. He highlighted to the tribunal the background to his dismissal, with Ms Moffatt and Ms O’Connor using the website issue as “a way to get rid of him”.
The Tribunal was concerned that a series of allegations that had no basis in fact had been included in the disciplinary charges and that, even though they did not form part of the reasons given for the dismissal, reference had been made to them in the disciplinary hearing. This was despite the HR department having advised that they be dropped.
The tribunal found that “Ms Moffatt was seeking to throw as much mud at [Mr Bates] as she could in the hope that some of this would stick”. The tribunal upheld his claim. It found that the employer had unfairly allowed personal views of what is an “inappropriate” website for staff to look at while at work to influence its decision to dismiss an employee and that the real reason for Mr Bates’ dismissal was Ms Moffatt’s wish to get rid of him.
Comment: Be consistent with treatment of your employees and be aware of any personal animosity that may have given rise to allegations. Managers should take an objective view of what is “inappropriate” and not allow personal “moral” values to colour their judgment.
It is impractical for most employers in this day and age to ban entirely personal internet use at work. Most employers therefore allow limited personal internet use, as long as usage is not excessive and the websites visited are not “inappropriate”.
Employers that load as many accusations as possible into disciplinary charges risk bias, even if those accusations are later dropped or not upheld. Disciplinary action should be limited to issues where there is evidence of wrongdoing.
Consider whether this is the time for developing and implementing a Social Media Policy. In this matter, the school had a policy on computer use but had “relaxed” the rules after a campaign against the policy by teachers.
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