Employment Act 2008   The Employment Act 2008

Problems of Email Misuse Within the Workplace   Protect yourselves from the perils of email misuse in your workplace

Dear Picasso HR   He’s only sprained his ankle!

Employment Act 2008

The Employment Act 2008 is due to come into force in April 2009 and will have the effect of repealing the statutory disciplinary and grievance procedures that were introduced by the Dispute Regulations in 2004.

Employers will be required to have regard for the new ACAS code of practice in any future management of disciplinary and grievance proceedings.  The code sets out guidelines for employers and employees on the handling of disciplinary and grievance procedures.  Failure to follow this code of practice could increase liability by 25% in any successful compensation claim made against you.  Similarly, tribunals will be able to reduce payments by 25% for those employees who fail to act reasonably in terms of resolving issues in line with the code.

Picasso HR can provide advice and support in all disciplinary and grievance matters.

Please contact us for advice.

Problems of Email Misuse Within the Workplace

There are a number of legal risks surrounding the use of email that employers should consider:

• Allegations of harassment or discrimination from employees receiving discriminatory emails.  Discrimination claims present a risk of an unlimited compensation award for an employer.
• Allegations of obsenity by employees sending e.g. pornographic emails leading to employer held to be responsible under the Obscene Publications Act.
• Breach of company confidentiality by employees either inadvertently or deliberately sending information to inappropriate recipients.  This not only raises an immediate risk to business operations but may also put the company at risk of a Data Protection claim.

Other problems associated with the use of emails are:

• They are used inappropriately as a channel of communication for more formal messages e.g. to invite a staff member to a disciplinary meeting.
• They are quick to construct, leading to many messages being sent in haste and resulting in unnecessary employee relations issues.
• Increased usage may lead to information overload for some employees who receive more emails than they can manage during their working day.  This results in important messages becoming lost amongst irrelevant information.
• They tie managers to computers resulting in a lack of management presence and influence on the factory floor.

How to protect your organisation:

• Ensure that you assess the specific risks that your business may face.
• Ensure that you have an acceptable use policy incorporated into your company handbook.  This policy should state that the employer is entitled to monitor email communications and that employees should not assume that their correspondence will be private.
• Monitoring of email communications can be conducted by the employer for specific purposes and must take into consideration the Human Rights Act, the Data Protection Act, the Regulation of Investigatory Powers Act and the Lawful Business Practice Regulations prior to monitoring taking place.
• Technical solutions such as text and image filters can help to block information from entering or leaving the organisation and may help to reduce the risk of inappropriate emails being sent.
• Ensure that all incidents of inappropriate email usage are followed up in line with your company's disciplinary procedure.

For further information or advice regarding the issues surrounding the use of emails please contact Picasso HR.

Dear Picasso HR

He’s only sprained his ankle!

An employee of ours, Dave, sprained his ankle playing football at the weekend and he has been signed off sick by his doctor for 2 weeks. We pay up to 4 weeks of sick pay in a calendar year. Dave has not had any time off sick so far this year. We would like him to carry out some data entry work from home and can set him up with a computer etc. Can we insist and where do we stand if he refuses?

Response

If, like many employers you pay Occupational Sick Pay (OSP), hopefully you will have written terms that relate to it in the contract of employment. You are free to devise your own rules provided they do not infringe discriminations laws.  So, if your terms say something like this then you have a good case;

“When an employee is off sick, the employer may reasonably require the employee to undertake appropriate and reasonable duties whilst he/she is unable to perform normal duties. Failure to comply with such a request may entitle the employer to withhold the payment of OSP. This does not affect the employee’s statutory right to SSP or equivalent.” However, you must still be seen to act reasonably in seeking to enforce the clause.

If you do not have such a clause, then we recommend that you try to come to an agreement with Dave rather than forcing him to work from home. You will also need to make sure that you conduct a health & safety risk and occupational health assessments at his home to ensure that necessary adjustments are made to create a safe working environment.

You should also check with the providers of your Employers’ Liability Insurance before setting up an arrangement for an employee signed off as sick to work from home. Some insurers may not cover this type of situation.

What if Dave was only going to receive Statutory Sick Pay (SSP)?

There is a precondition for payment of SSP that the employee “must be incapable by reason of some specific disease or bodily or mental disablement of doing work that he can reasonably be expected to do under his contract of employment.” This creates problems. If the employee is able to work at all then he may well lose the right to claim SSP. If he is to work while recovering he is likely to want full pay for it anyway.

Our advice is that given he is going to be away for only 2 weeks and if someone else is able to help with the work, you are better off not asking him to work from home when on OSP. If just paying SSP then it’s probably best to leave the employee well alone. 

The information in this newsletter is of a general nature and is not a substitute for professional advice. You are recommended to obtain specific professional advice before you take any action.

For further information, advice or assistance on any of the matters raised in this newsletter please contact Picasso HR on 01473 890037.

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