How Are You Voting Today? Zayn or Louis?

Louis Zayn
#TeamLouis or #TeamZayn?

Whilst most eyes will be on the General Election today, some may also be on the twitter spat which has broken out between One Direction band member, Louis Tomlinson, and his former band mate, Zayn Malik.  A very public war of online words has commenced on twitter between the two ex-band mates.  Opinion is very clearly divided as to which musician is in the wrong.

Social media feuds between employees

As an employment lawyer, I am being asked more and more frequently to give advice to employers as to when (and how) to intervene when such social media issues occur between employees.  Employment lawyers are now having to grapple with issues such as “cyber bullying” and “online social exclusion” on a sometimes weekly basis.

Is the conduct within the course of employment? 

Before making a decision about whether to intervene in such online spats between employees, an employer should consider whether or not the conduct falls “within the course of employment”.  Historically employment tribunals have interpreted this definition very widely and frequently in favour of the employee.  However tribunals are also keen to emphasise that each case will be fact specific.  Generally an employer will only be liable for acts of its employees which are authorised by it.  Therefore if an employer makes clear to employees what use of social media is prohibited, this would be a potentially good defence to any claim on the basis that such conduct took place between employees outwith the course of employment.  On this basis, employers should have a clear social media policy in place and provide regular training to its employees as to unacceptable use of such social media.

What steps should be taken by the employer if social media misconduct falls within the course of employment? 

  • Where possible, employers should encourage employees to make use of the formal grievance procedure. This will allow the employer to create and maintain a paper trail as to the extent of the alleged misconduct.  This should also allow the employer to note the effect of the misconduct on the disgruntled employee.  This information might also prove useful at any future tribunal hearing.
  • Employers should ensure that any bullying and disciplinary policies extend to include the use of social media. This might include the use of offensive or intimidating language directed at another employee on social media.
  • Lastly employers should also take action against employees who commit acts of misconduct on social media. In order to do so, the employer will require to rely upon a robust social media policy.

Ultimately whether you are #TeamLouis or #TeamZayn, it seems clear that this recent episode of #KeyboardCourage looks set to prolong the #ZaynPain for another few weeks …

Simon Allison
Partner & Head of Employment Law

The Royal Wedding: Don’t bank on a holiday

All across the country on 23 November 2010 Royalists and holiday-lovers rejoiced at the Cabinet’s announcement that the occasion of Prince William and Kate Middleton’s marriage on 29 April 2011 would be marked with a public holiday.

Employers and financiers alike will be asking: do we have to? The answer relies on an understanding of how public holidays work within the law. There are a number of common misconceptions which muddy the waters, particularly the confusion of what a public holiday actually is.

What is a bank holiday?

A bank holiday is one stipulated by legislation. The Banking and Financial Dealings Act 1971 governs bank holidays with the UK, and the Scotland Act 1998 assigns to the Scottish Ministers the responsibility for setting bank holidays. At present, there are eight permanent bank holidays.

What is a public holiday?

Public holidays are controlled by individual local authorities. Generally, these are set in cooperation with local businesses and are aimed at preserving local history and traditions, thus this year Dundee marks Victoria Day on 30th May, Arbroath marks St Tammas day on 26th July, and the rest of the world keeps on turning. These designated public holidays are merely recommendations: employers are under no obligation to close their businesses on these days.

Am I entitled to a holiday?

No employee is entitled to take a holiday on a bank or public holiday as a matter of course. Rather, an employee must look to their contract of employment to establish what their position is. An employee entitled to 20 days plus bank holidays would quite rightly expect the day off, as the Royal Wedding is indeed a bank holiday.

More commonly, a contract might entitle an employee to e.g. 24 days holiday as well as six paid bank / public holidays. Such contracts usually go on to list which six days will be given as holiday e.g. Christmas Day, New Years Day. An employee of that firm therefore receives 30 days of paid annual leave. As such, the employer would be compliant with the Working Time Regulations’ prescribed minimum of 28 days holiday and the employee has no special entitlement to take the Royal Wedding off as it is not one of the public holidays listed in the contract.

An employee in such a position would simply apply for a day’s holiday in the usual way, and an employer will then operate their usual standards in deciding whether or not to grant the request. Employers must adopt a consistent approach to bank /public holidays. If employees have routinely been granted leave on such days in the past it may be that there is an established ‘custom and practice’ within the workplace. This could potentially allow employees to claim holiday for the Royal Wedding.

The Practical Aspect

There is nothing intrinsically special about the Royal Wedding from an employment law point of view. Most employees are unlikely to be entitled to the day off, and will have to apply in the usual fashion if they wish to take the holiday.

If there is dubiety about an employee’s contractual entitlement, it may be that employers will choose to grant requests as a gesture of good will in order to maintain good employee relations. If this is done, employers should move quickly to tighten up their statement of terms and conditions in order to prevent a ‘custom and practice’ forming whereby employees expect to have an automatic entitlement to take future bank and public holidays off.

Wise employers should look to clarify any such grey areas in a timely fashion, as any problems experienced with the Royal Wedding will likely resurface next year, when a further public holiday takes place on 5th of June 2012 to mark the Queen’s Diamond Jubilee.

Stewart Dunbar
Trainee Solicitor
Employment Law