Archive for the 'Employment law' Category

Our Employment Law colleagues blog on another Employment Tribunal case related to an employee’s use of social media. In this case, the employer’s social media policy was relevant to the Tribunal’s dismissal of the employee’s claim.

Brodies Employment Blog

Recently, there have been a number of Employment Tribunal cases focusing on employees’ Facebook posts. In Weeks v Everything Everywhere Limited, the claimant was dismissed after making posts that compared his employer to Dante’s Inferno.

Everything Everywhere Limited (EEL) employed Mr Weeks as a customer service adviser. Its social media policy warned employees to avoid making posts that could damage EEL’s reputation or be viewed as bullying and harassment.

Mr Weeks frequently made Facebook posts that likened EEL to Dante’s classical portrayal of Hell, such as “Dante’s awaits me – what a downer 12 hours of love and mirth“. Ms Lynn, one of his colleagues, reported these comments to Mr Groom, his line manager. Mr Groom formally warned Mr Weeks to stop posting in this manner.

After receiving the warning, Mr Weeks made posts which Ms Lynn found threatening. For example, he posted “it saddens me that people…

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Information Commissioner publishes guidance on Bring Your Own Device

The UK’s Information Commssioner’s Office (ICO) has today published new guidance for employers on the use personal (employee owned) devices for work purposes.

Bring Your Own Device (or BYOD) is a hot topic for many organisations. Many employees are seeking to use their own smartphone or tablet for work purposes. If properly implemented, a BYOD scheme can actually reduce the information security risks by making it easier for employees to access corporate data on their own device, thereby discouraging them from trying to find workarounds (such as emailing confidential information to a personal email address, or using a personal email address to carry out work business).

However, there are risks.

In November, Computer weekly reported that the number of BYOD devices in use was set to double by 2014. However, Gartner predicts that through 2014 employee owned devices will be compromised by malware at more than double the rate of corporate owned devices.

A survey by the ICO, published alongside the new guidance, reveals that some 47% of those polled have used a personal device (whether a smartphone, tablet or laptop) for work purposes. However, only 27% of respondents said that their organisation had provided guidance on the use of personal devices for work purposes.

BYOD policy
This is worrying, as it opens up the employer and employee to a number of risks.

For example, if the employer turns a blind eye to BYOD (which would otherwise breach its information security policy), it will find itself in a very difficult position in the event of a data loss incident. Not just with the ICO and any potential fine for a breach of the Data Protection Act, but also in terms of the ability of the employer to take disciplinary action against the employee.

A lack of a BYOD policy means that the employer has no cogent BYOD strategy, setting out what is and isn’t acceptable. For example, the sorts of devices that are considered to have appropriate levels of security, password security, the employee’s responsibilities, and what happens if the device is lost or stolen.

The policy should also cover other issues such as who is responsible for voice and data costs, insurance, and what happens if the employee is unable to carry out his duties because the device has been lost or stolen.

The ICO’s guidance
The ICO’s guidance emphasises the importance of developing a BYOD policy contains the following key recommendations:

  • Be clear with staff about which types of personal data may be processed on personal devices and which may not.
  • Use a strong password to secure your devices.
  • Enable encryption to store data on the device securely.
  • Ensure that access to the device is locked or data automaticaly deleted if an incorrect password is input too many times.
  • Use public cloud-based sharing and public backup services, which you have not fully assessed, with extreme caution, if at all.
  • Register devices with a remote locate and wipe facility (mobile device management) to maintain confidentiality of the data in the event of a loss or theft.

The guidance also reminds organisations in the public sector that information held by employees on a personal device may be subject to disclosure under freedom of information legislation.

More information
To read our top tips for BYOD, follow this link.

To read the ICO’s new guidance, follow this link.

Brodies can help you develop a BYOD policy which suits your organisation. To discuss how we can assist please contact me or your usual Brodies contact.

Martin Sloan

Is it reasonable to dismiss an employee at the request of the customer under an outsourcing agreement?

Our Employment Law colleagues have blogged on a recent Employment Appeals Tribunal decision over the dismissal of an employee by an outsourcing services provider following a request by the customer to remove the inidivual.

You can read more about the EAT’s decision by following this link.

Provisions that allow the customer to demand the removal of a member of staff are often an area of disagreement when negotiating an outsourcing contract. Often, the customer will require such a right for regulatory reasons (for example to comply with the FSA’s rules on outsourcing). However, the customer will also often insist on such a right to maintain the smooth running of the services and to ensure that disruptive employees (or those suspected of wrongdoing) are removed.

Outsourcing suppliers frequently push back on this as they fear that complying with such a request could lead to an unfair or constructive dismissal claim from the employee concerned.

This decision confirms that a decision to dismiss an employee at the request of a third party can be reasonable (and therefore lawful). However, the employer must consider the degree of any injustice on the employee and what alternative steps could be taken prior, or as an alternative to, dismissal. In this case, it appears that the employer did not investigate the underlying problem before dismissing the employee.

The decision will provide customers with some reassurance that such provisions are reasonable and should not automatically cause the outsourcing services supplier to be in breach of its obligations under employment laws, whilst also providing outsourcing services suppliers with some guidance on how such requests should be handled.

Martin Sloan

Better the devil you know? Proposed reform to Service Provision Changes and the application of TUPE

The Government has recently announced that it is proposing to make a number of changes to the scope of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”).

These proposals include the removal of references to service provision changes: outsourcing, ‘second generation’ outsourcing (i.e. the transfer of the outsourced services from one provider to another) or in-sourcing.

As it currently stands, TUPE will apply where a service provision change takes place which involves an organised grouping of individuals in Great Britain whose principal purpose is carrying out activities which are transferred to a new provider. The effect of this is, of course, that the outgoing and incoming parties in such a scenario have duties to inform and consult with the affected employees about the transfer, and the affected employees’ employment will automatically transfer to the new provider.

For many the benefit of the current system is certainty. Generally, parties involved in a service provision change will presume that TUPE will apply and are prepared to negotiate the contractual documentation on that basis – the parties know where they stand.

However, the UK Government was not under an obligation to develop TUPE law by expressly stating that TUPE would apply on a service provision change and many felt that this was a step too far – increasing costs on the parties in respect of situations which may previously have been outside the regulations’ scope. These concerns have led to the Government’s current proposals.

Should the service provision change references be removed from TUPE it must be remembered that many service provision changes will still be caught by TUPE anyway. The standard TUPE test is met where there is a transfer of an economic entity that retains its identity. However, parties will be left having to step back in time to look at older case law to assess whether TUPE applies to their situation

What now?
The Government’s consultation closes on 11 April 2013.

Should the Government decide to take the proposals forward any changes will not be implemented until October 2013. Even if the reference to service provision changes is removed at that time there is certainly no need to panic! The Government is aware that:

  • many contracts involving service provision changes are drafted on the basis that TUPE will apply on the cessation of the services (i.e. on ‘exit’), and therefore obligations and liabilities in respect of TUPE will have been heavily negotiated and factored into the deal commercials; and
  • outsourcing projects can be very large, complicated and a significant amount of time can pass between the initial planning stage and the implementation stage where the services actually transfer.

As a result, the Government recognises that there will need to be a transitional period prior to any change in the law becoming effective.

The Government is due to publish its response to the consultation in July and there will be much more clarity on what is going to happen at that time. Many hope for the status quo to continue and say it’s never too late for the Government to change its mind, but given the numerous changes the Government are making to employment law at the moment I would be surprised if the changes didn’t go ahead. However, it’s certainly a case of watch this space…

You can take part in the consultation by following this link.

Andrew McConnell

Andrew is an associate in Brodies’ Employment, Pensions and Benefits department, and regularly advises on the application of TUPE to outsourcing and services agreements. Andrew blogs on Brodies’ EmploymentBlog.

Our employment law colleagues blog on another employment law decision relating to the use of social media by an employee. Appears to protect an employee’s right to privacy when using social media.

Brodies Employment Blog

The recent case of  Smith v Trafford Housing Trust illustrates the extent to which an employee’s posting on Facebook can impact upon their job.

Mr Smith was demoted after he had been found guilty of gross misconduct for posting comments on Facebook opposing ‘Gay Church marriages’, describing them as ‘equality too far’. The Trust believed this amounted to gross misconduct because:

• an employee had been deeply offended;

• Mr Smith’s Facebook wall disclosed that he was a manger of the Trust;

• the terms of the Code of Conduct and Equal Opportunities policy had been breached; and

• as a manager Mr Smith had failed to uphold the Trust’s policies.

Mr Smith suffered a 40% salary cut and brought a claim for breach of contract. The High Court held that Mr Smith’s demotion and resulting reduction in salary amounted to a serious and repudiatory breach of contract. He was…

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Peter McCorkell from Brodies Employment team blogs on BYOD following our recent seminar on managing the risks with BYOD.

Brodies Employment Blog

Last Thursday the Brodies Technology and Employment teams delivered a joint seminar in Edinburgh on the burgeoning practice of employers allowing employees to bring their own devices to work. The seminar looked at the pros and cons for both companies and employees and sparked a few interesting debates about some of the more controversial issues of BYOD. What happens, for instance, to company owned material and confidential documents stored on the employee’s device when the employment comes to an end? What challenges does a company face in managing the risk of data security breaches when the device is owned by the employee?

The seminar looked at the best ways to protect the company’s position and discussed how to develop an effective policy to regulate BYOD.

One of the interesting things to note from research for the seminar was that a large number of organisations do not have a BYOD policy…

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Our colleagues over on Brodies EmploymentBlog blog about new guidance from ACAS on BYOD. To find out more about the legal issues surrounding adoption of BYOD and the importance of BYOD policies, come along to our autumn seminars.

Brodies Employment Blog

ACAS has produced some brief guidance on employee use of smartphones and other personal devices at work. It suggests there are advantages in having a ‘bring your own device’ (BYOD) policy, such as saving cost and portraying the company as being forward-thinking and flexible.

A well managed BYOD policy should isolate business use from personal use and employers should consider making provision for remotely deleting sensitive data from devices that belong to ex-employees or has gone missing. You can read the full guidance here.

As part of its Autumn client seminar series Brodies are delivering a seminar on this topic in Edinburgh, Aberdeen and Glasgow. More information about this seminar and how to sign up can be found here.

Verity Clark

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Brodies Autumn seminar programme

As part of Brodies’ autumn 2012 seminar programme, we are running a series of free seminars at our offices in Aberdeen, Edinburgh and Glasgow:

  • Your Intellectual Property, your views – what did the survey say? – Gill Grassie and Robert Buchan will highlight the key findings from our recent survey on how businesses protect and value their intellectual assets, and discuss what IP lessons and opportunities they reveal for businesses – could you be making more of your IP? Are you exposing yourself to unnecessary risk?
  • Bring Your Own Device – Managing business risks in the iPhone era – Grant Campbell, Martin Sloan and employment lawyer Andrew McConnell will look at the legal issues surrounding BYOD adoption, and provide some practical guidance on how organisations can manage the data security and employment law risks.

For more information and to find out how to register, please visit our Events page. If you’d like to see the whole seminar programme then head over to the Seminars page on the main Brodies website.

We look forward to seeing you there!

A decision to make your hair stand on end? When is a self employed individual really a worker?

Our employment law colleagues over on EmploymentBlog have blogged on a recent Court of Appeal decision upholding a claim by a self-employed individual that he was actually an employee of the company. Notably, the individual’s contract with the company (a hospital) expressly stated that he was a self-employed contractor.

The decision will be of particular interest to organisations that use self-employed IT contractors. It’s clear that organisations cannot just rely on a contractual statement to create a customer/contractor relationship, but instead need to look at the facts and circumstances surrounding the individual’s appointment. The blog sets out a three part test used to determine the individual’s status.

Read the blog: A decision to make your hair stand on end? When is a self employed individual really a worker?

 

Techblogger article on data protection law reform and why it matters to HR professionals

My colleagues Grant Campbell and EmploymentBlog blogger (and empoyment partner) Tony Hadden have an article in Personnel Today looking at the implications for HR professionals arising out of the European Commission’s proposed reform of EU data protection law.

The article looks at some of the key changes proposed under the draft regulation, and how these will impact upon HR professionals – such as the “home regulator” principle, increased responsibilities for data processors, increased rights for individuals, breach notification, an increased power to fine, and the general beefing up of the obligations on data controllers.

You can read the article on the Personnel Today website. Alternatively, you candownload the full version from the Brodies website.


Twitter: @BrodiesTechBlog feed

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