A round up of the latest HR and Employment Law updates and related stories.  

SOCIAL MEDIA – EMPLOYER’S DELAYED RIGHT TO TAKE ACTION

Most employers feel that they need to take almost immediate action against an employee who posts derogatory remarks on social media. However, following the Employment Tribunal Appeal case of The British Waterways Board T/A Scottish Canals –v- Smith UKEATS/0004/15/SM this is clearly not the case.

This case involved an employee, Mr David Smith, who had been employed by Scottish Canals for about 8 years. Mr Smith was clearly stressed and unhappy about his working conditions and eventually raised several formal grievances. Other colleagues were also unhappy and they took advice from their Trade Union Representative. This culminated in May 2013 when the employers arranged a mediation meeting.

However, prior to this meeting the member of the HR team dealing with this organised an investigation of the employee’s Facebook pages and found that Mr Smith’s included derogatory comments made by him, such as “that’s why I hate my work for those reasons its not the work it’s the people who ruin it nasty horrible human beings” and admitting “on standby tonight so only going to get half pissed lol”.

In June 2013, Mr Smith was summarily dismissed for gross misconduct on the basis that his comments and admission of drinking alcohol whilst on stand-by duties brought Mr Smith’s capabilities into question and exposed his employer.

Although the initial Employment Tribunal had found Mr Smith’s dismissal to be unfair because their decisions to dismiss was outside of the “ band of reasonable responses open to an employer” at the Appeal Tribunal disagreed and found the dismissal to be fair .

ACAS recommends that employers take prompt action with regards to issues on social media but this latest case means that employers who don’t take more immediate action don’t necessarily lose their right to do so. Having said that there is no substitution for a robust social media policy so that everybody in your practice is aware of what your practice expects in relation to social media.

We take this opportunity to remind you once more of ‘best social media howler by a Minister’ in the light that some ‘adverse’ postings may be only the result of a witless mistake.

ILLEGAL WORKING – GREATER EMPLOYER LIABILITY AND SANCTIONS IN THE IMMIGRATION BILL 2015/16

Section 21 of the Immigration Act 2006 already makes it a criminal offence to employ someone knowing that they don’t have the right to work in the UK. Employers must retain evidence to show that employees do have this right and, where applicable, carry out re-checks.

However, proposals in the most recently produced Immigration Bill (currently Section 9(1)) intend to make it much easier to take action against employers, who fail to take adequate care, by widening the definition of the offence to include employers who have a “reasonable cause to believe” that the employee does not have a right to work in the UK. The sanctions for this offence could increase from 2 to 5 years imprison and are to be accompanied by heavier financial penalties to tackle employers who “turn a blind eye”.

Although the Bill has not yet been passed it is clear that practices should:

• review how and when they check and recheck that employees have the right to work in the UK
• ensure they retain clear evidence both proving that the checks have been carried out and that the employee has a right to work in the UK.