Should I Accept a Facebook Friend Request From My Boss?

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Have you ever experienced that awkward moment when you get a friends request from a relative stranger?  Worse still, have you ever experienced that awkward moment when you get a friends request from your boss?  It’s always going to be a dilemma.  Do you or don’t you?  Will you allow your boss to know the secrets which are contained on your timeline?  Or will you reject it and run the risk of that embarrassing conversation when your boss mentions his or her pending friends request.  And what are your concerns anyway?

Can my boss discipline me for posting a status update during working hours?

Potentially, yes.  However the answer to this question depends entirely on the content and precise wording of your employment contract or staff handbook.  Does your employer permit “reasonable use” of social media during working hours?  Or does your employer expressly prohibit use of social media during working hours?  Either way, if you are breaching the terms of your social media policy and your boss is a Facebook friend, it is entirely reasonable for the boss to take action against you in this respect.

Can my boss use information from my Facebook profile to discipline me? 

Again, potentially yes.  Over the past few years, employment tribunals have permitted employers to use information which has been gleaned from social media to dismiss employees.  In one recent case, an employee was dismissed for posting “OMG I hate my job! My boss is always making me do s*** stuff just to p*** me off”, forgetting that she was already Facebook friends with him.  He replied to the post stating, “that ‘s*** stuff’ is your job.  You seem to have forgotten that you have two weeks’ left on your six month trial period.  Don’t bother coming in tomorrow.  I’ll pop your P45 in the post.”  So again, using information from Facebook is entirely possible.

Is it ever unfair for my boss to rely on this type of evidence at an employment tribunal?

No, not really.  If you are friends with your boss on Facebook, any of your status updates will be fair game.  Recent tribunal decisions have held that even covert recordings which are “very distasteful” and “discreditable” will not alone render them inadmissible.  More and more frequently employees are recording formal meetings without the employer’s consent and then seeking to rely on this covert recording at any future tribunal hearing.  So, again it would be entirely reasonable for your boss to rely on your social media content at a future employment tribunal.

So should I accept a Facebook friends request from my boss?

One of the first things you learn when you begin your professional career is that you’re going to be spending a lot of time with your colleagues.  And if you’re lucky, some of these colleagues could become your friends.  Bonding with your trusted colleagues is a no-brainer however what about a friendship with your boss?  Having a positive, constructive and open relationship with your boss is always a good thing and, if you can cross that line into friendship (even if it is only Facebook friendship), then you are one of the lucky few!

P.S. And if you don’t want your boss to see that photo of you, tagged on Saturday night, sitting in a shopping trolley on Benvie Road with a can of lager in one hand and a kebab in another, you probably shouldn’t be posting it anyway.

Simon Allison
Partner – Head of Employment Law
@EmpLawyerSimon
www.blackadders.co.uk

Drive it on home – Drive time and working time

Q: What is a peripatetic worker?  A: A worker who spends short periods of time at various different places who travels regularly to perform their work.  Such an arrangement is likely then to involve a lot of driving.  Q: How, then, should time spent driving between different assignments be treated for the purposes of working time?

A: The Advocate General has offered some guidance following an opinion in Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL.  This case concerned Spanish workers who were employed to install and maintain security equipment at various locations across the country.  The workers were assigned to their employer’s head office in Madrid.  However, each worker had a specific area to cover.  They were provided with company vehicles and were required to travel from their homes to the various premises to carry out the work.  The employer’s policy provided that the first and last journeys of the working day (i.e. from the worker’s home to the first job and from the last job back home) were not part of working time.  In other words, they were only deemed to be working from the minute they arrived at the first job up until the minute they left the last job of the day.

The workers alleged that this practice infringed the EU Working Time Directive.  Following a referral from the Spanish court, the Advocate General has opined that for such peripatetic workers, who do not have a fixed or habitual place of work, time spent travelling from their home to the first assignment and then from the last assignment to home, should be regarded as working time.

There is no middle ground between working time and rest time.  The Advocate General was satisfied that the three conditions for working time were satisfied: (1) being at the workplace – met because the very nature of peripatetic work, involving daily travelling, renders travelling an integral part of the job; (2) being at the disposal of the employer – met because the travel  was to customer sites for the benefit of the employer, the routes being set by the employer who could change instructions at any time; and (3) that the employees be engaged in work duties – met because travelling was integral to the performance of the activity.

Jack Boyle 
Senior Solicitor – Employment Law
@EmpLawyerJack
www.blackadders.co.uk

The Equality Act for Service Providers – Certainly not a Piece of Cake

Facts of case

Last month saw a much publicised case in Northern Ireland involving a bakery and a customer requesting a message supporting gay marriage to be displayed on a cake. The owners of the bakery refused to make the cake on the basis that the message went against their strong religious beliefs. Belfast County Court held that this amounted to discrimination against the customer.

The law

In Scotland, the Equality Act 2010 ensures that people are treated equally regardless of whether they hold any of the “protected characteristics”. Similarly to discrimination in the workplace, when providing a service there are eight protected characteristics which a customer may possess, namely the following:  disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, sexual orientation and age. Interestingly marriage and civil partnership is a protected characteristic when a worker is in employment, but not when a service is being provided to a member of the public.

When you are offering a service to the public you must ensure that you are not discriminating against any of these protected groups. It does not matter if this service is being paid for or not. The term ‘service’ has been given a wide interpretation by the courts. It includes services offered physically by way of a shop, services offered online or services offered by telephone etc.

Direct discrimination

There are a number of different types of discrimination, some of which you may not even realise are occurring. The most obvious type is direct discrimination. This occurs when someone is treated less favourably than someone else because of a protected characteristic. An example of this is the above ‘cake row’. The customer was found to have been treated less favourably than another customer because of his sexual orientation in addition to his political beliefs. Where direct discrimination is found to have occurred there is no justification defence available to the service provider. If you are offering any such services you must ensure that you treat everyone equally.

Indirect discrimination

Indirect discrimination can occur without a service provider deliberately intending to break the law. This can happen when a general rule is applied by the provider which particularly disadvantages a person with a protected characteristic. Such examples can include taking orders for cakes by telephone only. This could indirectly discriminate against someone who is deaf and cannot use a telephone. Deafness would be included as a disability and is therefore protected under legislation.  However unlike direct discrimination, a service provider can justify indirect discrimination if the reasoning behind their policy is deemed to be fair. This applies if it is a proportionate way of achieving a legitimate aim. If you can demonstrate why you follow the particular policy, and it is deemed to be a fair reason for your company, then the policy will not amount to a finding of discrimination.

Warning

Discrimination in the workplace and for service providers is certainly not a piece of cake and can provide a rocky road for many companies. There are plenty of other situations when discrimination can occur and, unless you are a gluten for punishment, the yeast you can do is consider how you provide your services and ensure any half-baked practices are not discriminatory. Rather than turning your company upside down, if you are ever in any doubt about what amounts to discrimination and knead a second opinion, seek advice!  It would be wrong to assume that the Equality Act is much a dough about muffin (and sorry for the cheese(cake))

Andrew Wallace
Solicitor – Employment Law
@EmpLawyerAndy
www.blackadders.co.uk

Zero Hours Contracts

Zero hours contracts emerged as a hot topic during this year’s General Election and the new Government has already started making changes in this area of employment law.

Primarily used for casual workers, the general understanding of a zero hours contract is that an employer does not have to provide minimum working hours to the worker, whilst many contracts also expect workers to be available to work when it is offered.

For years zero hours contracts have allowed for a flexible workforce, traditionally for seasonal work or to cover short term staff shortages.  That said, there is now concern that zero hours contracts are being used in areas where they are not suitable, because they put workers at risk of missing out on benefits such as paid holidays and sick pay.

The Government has started to clamp down on zero hours contracts.  Since the end of May 2015, exclusivity clauses in zero hours contracts, which prevent an individual from working for another employer even if their contracting employer cannot offer them work, have been unenforceable under the Small Business, Enterprise and Employment Act 2015.

In addition, although the secondary legislation is not yet in place, the Act also allows the Government to introduce a protection from detriment for zero hours contract workers who take jobs under other contracts, and a guaranteed minimum pay level, below which exclusivity clauses will be unenforceable generally.

We will see if the Government goes these steps further.  In the meantime, employers who use zero hours contracts should review their contracts noting that any exclusivity clauses in them will no longer be enforceable.

Sarah Winter
Senior Solicitor – Employment Law 
www.blackadders.co.uk

Making My Mark In The Work Place: My First Tattoo

I have decided to get a tattoo.  Seriously.  It is something which I have been thinking about for the past few months.  My colleagues tell me that I am ridiculous, that I am too old for ink, that I will regret it forever and that I am suffering from some kind of mid-life crisis.  However none of these comments have yet dissuaded me from the notion.

What does the law say about tattoos?

As an employment lawyer, I am frequently asked whether workers who are treated differently because of their body art have any legal rights against their employers.  Discrimination legislation protects workers against less favourable treatment because of sex, race, religion or belief, age and other protected characteristics.  This protection does not however expressly include protection for workers with tattoos.  Essentially workers with tattoos have no standalone protection under discrimination legislation.

What does an accredited specialist employment lawyer say about tattoos?

Having said all of that, certain religions and philosophical beliefs may encourage tattoos.  It is unlikely that David Beckham, who has a tattoo of Jesus, would be able to rely upon discrimination legislation if he were treated less favourably because of his tattoo.  (I am not convinced that his tattoo is a manifestation of his religion or belief)  On the other hand, a Hindu worker who was forced by an employer to cover up a tattoo may have a claim for discrimination because of religion or belief.

Similarly if reliable statistics were to demonstrate that there was a particular disadvantage to a particular age group within the workplace – for example younger workers who were more likely to have tattoos and more likely to get told to cover them up by their employer – a claim of indirect age discrimination could potentially be pursued.  Depending on the circumstances of the workplace, there may however be a defence open to the employer for both of these types of claim.

What would an employer say about my tattoo? 

Despite the potential risks outlined above, an employer is still entitled to set a dress code and appearance policy for all its employees.  For example, an employer could legitimately create a policy which stipulated that employees could not have visible tattoos, particularly for employees who had customer/client-facing roles.  An employer might also want to prohibit any offensive form of tattoo from the workplace and even make express reference to the acceptability (or otherwise) of piercings, hair styles and beards.  The same caveats above would apply.

Ultimately an employer should take legal advice about the content of such a policy before seeking to enforce it against its workforce.  However it would be equally as important to take legal advice about the implementation of such a policy, particularly to a workforce of existing staff.

What would my parents say about my tattoo? 

With a fair degree of certainty, I am sure that my parents will not approve of my proposed tattoo.  However with an equal degree of certainty, I can assure you that I will not be telling them.  And, if you happen to see them, please keep it up your sleeve (… as will I).

Simon Allison
Accredited by the Law Society of Scotland as a Specialist in Employment Law
@EmpLawyerSimon
www.blackadders.co.uk     

Updated advisory rates for company car fuel

Employers who operate company car schemes should be aware that new advisory rates have been released applicable to journeys made on or after 1 June 2015.

Advisory fuel rates apply in relation to company vehicles where the employer either reimburses employees for any business travel in company cars, or where employees are required to repay any fuel costs associated with private use of the car.

Employers can choose to set rates which are different to the advisory rates.  However, if the rate paid for business use is no higher than the advisory rate (linked to engine size and type of fuel), HMRC will not regard this as taxable or liable to Class 1 national insurance contributions.

The new rates are as follows:-

Engine size Petrol – amount per mile        LPG – amount per mile
1400cc or less                12p                      8p

1401cc to

2000cc

               14p                       9p
Over 2000cc                21p                      14p

Engine size

Diesel – amount per mile
1600cc or less           10p
1601cc to 2000cc           12p
Over 2000cc           14p

The old rates can still be used by employers during the month of June.

Jack Boyle
Senior Solicitor – Employment Law
@EmpLawyerJack
www.blackadders.co.uk