Season 2.5: How to do Social Media? | Employment Lawyer in Your Pocket

blackadders logoSeason 2, Episode 5: Simon & Richard respond to a tweet by Elevator asking ‘do you encourage your employees to use social media?’. They discuss a cautionary case and Richards top tips are definitely worth noting down. Simon’s hashtags (#’s) are a bit dubious… but they will definitely give you a few laughs!!

 

We would be delighted if you would be able to provide us with some feedback by leaving a comment at the bottom of our podcast page. Thanks for listening!

You can listen to the latest episodes here:
Season 2.4: How to deal with copyright & trademarks?
Season 2.3: How to deal with stubble and tattoos?
Season 2.2: How to give a good reference?
Season 2.1: How to be a good witness?

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The Blackadders employment team
Scottish Legal Awards Employment Team of the Year 2016 

Get in touch with the team on twitter:
@EmpLawyerSimon
@EmpLawyerJack
@EmpLawyerRich

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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