Blog posts in Employment law

Autumn statement: employment law changes

So after November’s Autumn Statement, HR law for employers has changed. Again. As have pension rules. In very brief, here’s what you need to know and do now, plus advance warning on key dates for your 2012 diary 

Unfair dismissal qualifying period to rise

Currently, employees can usually only bring a claim for unfair dismissal if they have been continuously employed for one year at the time their job is terminated. As from 6 April 2012, the Government has announced the qualifying period will, in most cases, double to two years.

What do firms have to do?

Nothing immediately. But bear in mind that some HR experts have warned that firms might see a rise in claims that don’t rely on unfair dismissal, such as equality and discrimination protection that employees have as Day One rights in any job. Make sure your equality policies are up to date and that everyone understands and follows them.

Compulsory pension schemes delayed for small firms

Firms with fewer than 50 employees will not have to start enrolling staff in new ‘automatic enrolment’ pension schemes (into which both employee and employer must pay monthly) until May 2015. The smallest firms will get until 1 February 2016 to enrol. The original start date for smaller firms was April 2014.

But the whole scheme will begin on time in autumn 2012 and all employers must still join it at some point. The larger the firm, the earlier the start date – firms with 50-plus staff will have to be enrolled by mid-2014.

What do firms have to do?

New staging dates for small firms will be announced in January 2012. In the meantime, however, work out how many of your staff must be enrolled. Start budgeting for payments and admin costs for your firm. Look at your existing pension arrangements to see if they can be adapted for all employees, and if necessary start considering new schemes that fill official criteria. Ask yourself if your payroll and HR provisions can cope, and get ready for questions from employees. Stay aware of changes to the state pension age, too – this will rise to 67 in 2026 (not in the 2030s as planned).

Don’t forget these two for your diary….

2012 Diamond Jubilee gives UK businesses extra bank holiday

An extra bank holiday will take place on Tuesday 5 June 2012, with the late May bank holiday moving forward to Monday 4 June.

What do firms have to do?

Check employment contracts to work out if you need to pay staff for the extra day off. Workers are not automatically entitled to be paid for the extra day unless their contract says so, as bank holidays can be included in the statutory paid holiday entitlement of 5.6 weeks’ (28 days’) paid annual leave for full-time workers.

But it depends on the wording of the employment contract – for example, if employees’ contracts state that they are due paid holidays including all bank holidays – eg “20 days’ holiday plus bank holidays” - they should be paid for the extra day.

Small business rate relief holiday extended to April 2013

From 1 October 2012, businesses will have the opportunity to defer 60 per cent of the increase amount of their 2012-13 business rate bills. The extra can be repaid equally across the following two years.

What do firms have to do?

Apply for the deferral when your rates bill arrives next year.

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New temp, new entitlements

Kate Russell explains how to treat short-term staff now the Agency Workers rules have given them more rights.

A piece of legislation likely to cause a substantial increase in the costs of long term users of temps is The Agency Workers Regulations. The Regulations came into force on 1st October, giving agency workers the same basic employment conditions after 12 weeks in a given job as if they had been employed directly by the end-user.

The rights fall into two categories. Day 1 rights for all agency workers apply from the first day of employment.These cover things like equal access to your facilities (such as kitchen facilities). You must also ensure that temps can access information on your job vacancies from the first day of their assignment.

The second category confers rights on workers who have spent 12 weeks in the same job. These workers will be entitled to equal treatment entitlements relating to pay and other basic working conditions, such as annual leave and rest breaks. To qualify the workers must spend 12 weeks in the same job with the same hirer. Pregnant agency workers who have completed the qualifying period will be able to take paid time off for ante-natal appointments during an assignment.

The Regulations apply to temporary agency workers; individuals or companies involved in the supply of temporary agency workers, either directly or indirectly, to work temporarily for and under the direction and supervision of a hirer; and hirers in the private, public and third sector. The agency worker does not need to be working for the agency itself; it is enough for the agency to supply the worker.

People who find work through a temporary work agency but are in business on their own account (where they have a business-to-business relationship with the hirer who is a client or customer), job seekers who find direct employment with a firm through an employment agency and individuals on secondment or loan from one organisation to another fall outside the protections of the Regulations.

The rights conferred by the Regulations are not retrospective. For those agency workers already on assignment, the 12-week qualifying period started on 1st October 2011. The right to equal treatment will not apply until an agency worker has worked in the same role for a hirer for 12 continuous weeks. A change of agency during the 12-week period will not affect a worker’s qualification. The qualifying period is triggered by working in the same job with the same hirer for 12 calendar weeks. A calendar week includes any period of seven days starting with the first day of an assignment, irrespective of how many hours the worker does on a weekly basis. A new qualifying period will only begin if the new assignment with the same hirer is substantively different and/or there has been a minimum of six weeks break between assignments. The general rule under the Regulations is that any break between assignments of six weeks or less, in the same role, shall not break ‘continuity’ for qualification purposes.

The Regulations provide for a number of circumstances in which breaks do not prevent agency workers from completing the qualifying period.

The most usual break in the qualifying period will be because an agency worker begins a new assignment with a new hirer, but this can also apply where an agency worker remains with the same hirer but is no longer in the same role. The qualifying period will also be broken where there is a break between assignments with the same hirer of more than six weeks, and the break is not one which ‘pauses’ the period.

An example of the type of break that will create a pause in the qualifying period would be a break of no more than six calendar weeks and the agency worker returns to the same role with the same hirer, or a break of up to 28 weeks because the agency worker is incapable of work because of sickness or injury.

The regulations also affect an agency worker’s pay. In order to meet the requirements, it is necessary for agencies and hirers to understand what agency workers would have received in terms of pay and basic working conditions if they had been recruited directly.

Some hirers are considering the use of the Swedish derogation (under which the hirer does not have to provide the same basic working and employment conditions if the agency has a contract of employment with the agency worker). This device means that the hirer does not have to bear the costs imposed by the Regulations. Instead, this would be the responsibility of the supplying agency. Amendments to the regulations mean that the requirement to pay the agency worker will only apply after the end of the first assignment.

Kate Russell, Russell HR Consulting

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Are employment tribunals biased against employers?

To misquote a recent television commercial for California…. “People have a lot of misconceptions about [employment tribunals] and most of them are wrong…” – I always thought that all misconceptions were wrong, otherwise they wouldn’t be misconceived. But California has different rules, and so does the Employment Tribunal.

Getting a good result in an employment tribunal is one of the most satisfying parts of my job, so it pains me to say that an employment tribunal hearing is not an experience that I would wish upon any employer. It is a tiring, draining and fundamentally risky place to be for any employer.

I have a lot of experience of representing employers in employment tribunals, and I am often asked whether employment tribunals are biased against employers (or indeed I may be told that they are). But this is a misconception (and yes, it is therefore wrong).

There are judges and tribunal members who are more likely to look at things from an employee’s perspective, but the opposite is equally true. Having said that, an employment tribunal’s decision is as likely to turn on believability (even likeability) of a witness as much as on the evidence, and the mood in a hearing can change like the wind.

That is one reason why it is so important to have legal representation at the hearing and throughout the process, even though sometimes even that won’t be enough. Ultimately though, with the right preparation most employment tribunals will get it right most of the time.

The difficulty is that it is impossible to predict with certainty how things will go on the day. How things should go, is not the same as how they will go. This is not so bad for the Claimants (employees) who have little or nothing to lose and are often without legal representation. The employer, on the other hand, will have incurred legal costs, loss of management time, and reduced productivity - even if they win. So, do you feel lucky?

The risk and the cost often rest wholly with the employer. It is for this reason that you could say that the system is loaded against the business, which has no choice but to incur time and expense in defending a claim, and to that extent you could say that the system is biased against employers. So maybe that is a misconception that is right? (sic)

Matt Huddleson is a specialist UK employment lawyer and law firm partner with Foot Anstey and Wordpress law blogger.

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Agency worker rules – 5 steps to get ready (and save money)

The law for temporary staff is set to change yet again - if you hire seasonal workers or take on help to cope with busy periods, the new rules for temps could mean extra cost. As of 1 October, the Agency Workers Regulations give temps and agency workers some of the same rights as your full-time staff from their first day on the job. After three months (12 weeks) in the same job, the rules will grant your temps the same pay and overtime rates as your permanent workforce, as well as paid holiday.

In 2010 the Government estimated that half temporary assignments are longer than 12 weeks, which means that a lot of businesses round the UK will have to prepare in advance. However, taking a few simple steps now will prepare you for the new law and could save you money.

Step 1 – Tell HR and the managers who use temps about the legal changes. The new principle is that after 12 weeks an agency worker should be treated as if they had been recruited directly. Part-timers and temps who take a break during the assignment also qualify for the rights - for instance, even if a worker took a break for up to six weeks but came back to the job, only another six weeks would pass before he/she can claim full rights.

Make it clear that from Day 1 your business costs could rise to include everything from extra chairs in the canteen to a bigger car park. Explain to those who manage temps day to day that when an agency worker is kept on for a few weeks longer than planned, costs will rise further to provide them with paid holiday (but not pensions, sickness or parenting pay).

Step 2 - Establish that the temps you call in are really necessary. If you hire seasonally or ad hoc to cope with unexpected short-term sickness, no problem. But if it turns out that you are regularly calling temps in because you are endlessly understaffed or to save paying overtime, you may find the new rules mean you’re no longer saving money.

Consider the pros – flexibility, for example – of using temporary staff v. the cons – higher training and admin costs, for a start. Would your business be better off if you simply hired another permanent employee? Bear in mind, however, that the rules only apply to workers who come via an agency – the self-employed who provide your business with services don’t qualify for new rights and neither do Managed Service Contract workers (such as contract cleaners).

Step 3 – From October, you, not the job agency, are legally responsible for making sure your temps are getting access to all the facilities at work from their first day. Tell agency workers they are free to use the canteen, car park and any other facilities, such as a creche. Put up a noticeboard with any job vacancies so everyone can see it – temps have a right to know about internal positions on offer. If you don’t, you could be liable to legal action.

Step 4 - For longer temp contracts, send your terms and conditions to the job agencies you use so they can match them to make sure your temps are getting equal treatment from week 13. The terms to mirror are those your firm offers to a permanent employee who has just started in that job – if that looks like a cost problem, consider introducing qualifying periods for permanent staff. Don’t forget that pregnant agency workers must also be allowed to take paid time off for ante-natal appointments.

As time goes on, make sure that any changes you make to the terms and conditions of permanent employees are mirrored in contracts with temporary staff who have achieved the 12-week service requirement.

Step 5 – Be wary of anti-avoidance rules. As the Regulations say themselves “there is nothing to prevent an agency worker being released after say 11 weeks or for assignments of 12 weeks to be the usual practice of any hirer.” But firms should note that a pattern of firing and re-hiring temps that deliberately deprives them of their entitlements is easily spotted and won’t go down very well at an employment tribunal.

• Download guidance on the Agency Workers’ Regulations from the Department for Business, Innovation and Skills (BIS) website

Georgina Harris, Law Donut editor

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The Lawyer’s Guide to Office Romance

Michael Scutt explains how to deal with the pesky legal technicalities behind unusual uses for the stationery cupboard…

You know how it starts: the furtive glances, then the heavy smouldering looks, standing up tall, pulling your tummy in, thinking “I am sex, shall I make my move?” then the full blown look ‘em straight in the eye approach, perhaps even a pout.  Then someone walks into the washroom and says “why are you staring at yourself in the mirror?”

Narcissism is not a desirable trait in a person, but in the workplace it may be less dangerous than falling madly in love with one’s colleagues. Office romances may be fine whilst the birds are still cooing sweetly and the flowers are in bloom, but what happens when the adorable songbird of love is eaten by the evil Cat of jealousy and thrown up on the cold hard patio of vanquished dreams?   Tears all round that’s what.

I came across an article in an online journal called Here is the City a couple of weeks ago and that referred to a “recent survey” which produced some interesting statistics about bankers and their affairs.  The post does not reveal who carried out the survey, so perhaps some of these statistics should be taken with a pinch of salt;

72 per cent of bankers had had an affair. 82 per cent of male bankers had had an affair with a more junior work colleague and 26 per cent with their PA/Secretary,

The average length of affair for a man was 21 days, comprising 4 meetings at an average cost of £352 per meeting, whereas the average affair for a female banker was 136 days, incorporating 31 meetings. The survey doesn’t record how much female bankers spent on presents etc. I’m not sure how these statistics tie up with each other.

What motivated these people to have a workplace affair?  12 per cent said they played away because their wife no longer understood them, 17 per cent for the thrill, 5 per cent said because they could and a rather ungallant 24 per cent said they did so because their wife now reminded them more of their mother (“Yes dear, now put away your Ferrari, it’s time for your bath … do be a good boy”).

Workplace affairs have always happened and no doubt will continue just as much in the future, perhaps more given the increasing amount of time that we spend in the office away from our official significant others. Affairs can give rise to obvious conflicts of interest and distract attention away from business, particularly in an office environment. Some employers place restrictions or try and discourage them, which is probably prudent given the unpleasantness that can arise when everything goes sour.  

Employers would be well advised to have a clause in the contracts of employment they use, or introduce a policy governing workplace affairs if they want to try and regulate or prevent them. For instance, options include requiring disclosure of anything more than a platonic relationship between two employees or stating that the respective parties will be re-assigned into other roles away from each other if a romantic relationship develops.  Arguably when senior employees are involved a workplace relationship can be a breach of the duty of fidelity owed to the employer given the potential conflict of interest. Don’t forget that both heterosexual and homosexual relationships need to be covered by any such policy to avoid accusations of discrimination on grounds of sexual orientation.  

Of course, it is when one of the participants in the relationship has to make the other redundant that things can take a nasty turn and allegations of unfair selection (and thus unfair dismissal) can arise.  It can get worse too, a claim for sex discrimination might also be made.   

So much for employers.  What should employees do if “one thing leads to another”?  In the first instance check to see whether the employer has a policy (contractually binding or otherwise) governing workplace affairs.  If there is then careful thought needs to be given to whether it applies to your situation. Does a one night stand “qualify”?  Failure to comply might lead to disciplinary proceedings but, on the other hand, owning up to a romantic entanglement will probably be embarrassing and potentially disruptive to career trajectories. Therein lies the problem – failure to disclose when required to do so could be even worse if everything goes Pete Tong in due course.

For those employees who do get drawn together and don’t want to share their joy with the world then there are only two bits of advice to give: (1) Remember that discretion is the better part of valour. Be discreet    - don’t flaunt it even if the other party is the hottest thing since the poptart.  Keep professional in the office and try not to let your infatuation with the adored one become apparent.  The other tip, which follows on from the first is to remember the toast that the sailors on Shackleton’s heroic but unsuccessful trip to the South Pole in 1914 used to give to each other every week: “To our wives and girlfriends, may they never meet”.  The chances of this happening will be much reduced if you don’t broadcast the relationship on Facebook or post incriminating photos.    

Better still, don’t get involved at all.

Michael Scutt, Dale Langley & Co

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The Bribery Act - are you affected?

As summer begins, taking a client prospect to Wimbledon shouldn’t be a problem – but could you end up being done for another type of backhand?

Finally, after months of delay, the Guidance Notes to the Bribery Act 2010 have finally been unveiled. Were they worth the wait?

The cheers of acclaim for the Government’s efforts have been less than resounding. Some anti-corruption campaigning groups, such as Transparency International UK, are outraged at what they perceive to be a dilution of the principles of the Act. The Act itself will come into force on 1 July 2011, many months after it was first due to appear.

Bribery is defined as “giving someone a financial or other advantage to encourage that person to perform their functions or activities improperly or to reward that person for having already done so.” That is rather a wide definition and a lead to one criticism of the Act - its scope is imprecise. The answer is that you know bribery when you see it. Is that satisfactory?

For those of you who have not been anxiously following the progress of the Bribery Bill before it became an Act of Parliament, it is a piece of legislation that sought to ratify the existing law, which was in a mess. The Act covers the giving or taking of bribes and not offences like money laundering or insider dealing.  

Employment lawyers are interested in the new law because, under section 7, a corporate offence of failing to prevent bribery was created. This means that if someone who is “associated” with your firm (eg works for you, or you engage or retain) bribes someone in the course of business, your firm might be prosecuted. However, if you can show your firm had “adequate procedures” in place to stop it happening, this will defend you.  

Where does the Act apply? In this instance, the long arm of the law is very long:

“a commercial organisation can be liable for conduct amounting to a section 1 offence (bribing another person) or a section 6 offence (bribing a foreign official) on the part of a person who is neither a UK national or resident in the UK, nor a body incorporated or formed in the UK.” It doesn’t matter either if the offence of failing to prevent bribery was committed abroad. Wherever in the world offences are committed, the law applies to any firm set up, incorporated or working in the UK.

Many people were concerned that the Bribery Act would make an offence of business hospitality - that taking a business prospect to Twickenham would land you up in the dock, not a corporate box. The concern is understandable as penalties are fairly toothsome: the maximum sentence an individual can receive is 10 years. But the Guidance specifically makes clear this is not a risk, stating: “the Government does not intend for the Act to prohibit reasonable and proportionate hospitality and promotional or other similar business expenditure intended for these purposes.”

That’s ok then, although the Guidance recognises that hospitality could amount to a bribe, without setting out where the dividing line is. It will be a matter of fact and degree, although one theme that runs through the whole of the rather chunky Guidance Notes, on my reading, appears to be that “you will know bribery when you see it”, which is less than helpful. A day’s boozing and chomping of strawberries at Wimbledon may well be acceptable, but the party bag containing a Rolex watch for him or a diamond necklace for “the wife” probably isn’t.

So what are “adequate procedures”? The Guidance talks of the need to carry out an assessment of the risk your organisation faces of being bribed. That will depend on the type of business you are in, the size of the organisation and, crucially, the geography of where you do business. In other words, if you do business in a part of the world where bribery is commonplace you need to consider your position very carefully.

By way of assistance, the Guidance set out six principles to help. They are flexible and, in the jargon de nos jours “outcomes-focussed”, which means “the detail of how organisations might apply these principles, taken as a whole, will vary, but the outcome should always be robust and effective anti-bribery procedures.”

The six new anti-bribery principles are:

• Procedures should be proportionate – this means anti-bribery policies and procedures should take into account the risks the organisation faces of being bribed.
• Top- level commitment – senior management must work to create a working culture where bribery is never acceptable
• Risk assessment – what is your firm’s exposure to risk? Which markets does it trade in and where?
• Due diligence – in other words, be careful with whom you do business.
• Communication – anti-bribery policies and procedures need to be communicated throughout the business and amongst all workers. This includes training on how to deal with any issues or problems that arise.
• Monitoring and review of procedures – make sure they work and review regularly.

The Guidance finishes with case studies of each principle. In respect of hospitality, it is suggested that a company make clear to any people it entertains that the largesse provided isn’t given in return for an obligation to give business to them. Limits on amounts spent should be set and consideration given to the appropriateness (or otherwise) of the hospitality to be given.

In summary, the Guidance Notes are necessarily high-level, but provide some useful background to the type of steps that businesses should be taking to prevent bribery. For many businesses, undertaking commercial activity in countries where bribery is rife, I suspect they will not be greatly comforted, especially with regard to so-called “facilitation payments” to foreign officials.

Perhaps the 45 pages could have been shortened to this: keep your eyes and wits about you and you won’t go wrong.

Michael Scutt, Dale Langley & Co
 
Find out more 

• Government guidance aims to clarify Bribery Act for small firms
• Small firms warned to review policies ahead of Bribery Act

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Deal with real problems at work - do you feel old?

Georgina Harris explains how to cope (in nice big type)

There comes a time in every working life when the creeping realisation dawns that you are no longer the newbie flush with promise, the gilded youth sparkling at clients, or the one with the worst hangover, and you know in your soul that you are Not That Young Any More. Makes those bones ache a bit, eh?

As much a rite of passage as passing exams or filling in start-up forms, your new state is characterised by being nameless – ‘middle-aged’ cannot yet be used as that is your parents, surely - and a subterranean, fervent urge for action.

Which is where the trouble starts. A mid-life crisis at work these days is more shaming than announcing I Used to Be a Woman in the Gents’. We’ve all seen it – the wincing car crash of the exec with three kids who picks the two-seater Clarkson likes, the accountant who lives the 80s – again - with leather pelmets that stick her to the swivel chair, ponytail flailing as everyone leaves the meeting. The ipad you accidentally call a Walkman. That “interesting” tie. Jaunty shoes. Like, you could lose all your colleagues’ respect? Your clients will soooo laugh. Or be kind, meh.

Time to sort things out. I am thrilled to announce that, unlike most of your daily problems, the solution to this issue is Do Absolutely Nothing. But, if you want to get away with this idleness, you must, silently, Thank The Law. Consider this:

1. Dave Cameron is your bruv, guy. From 6 April 2011, employers will no longer be able to retire anyone using the Default Retirement Age (DRA). This means they can’t sack you for wearing coloured deck shoes on Fridays any more.
2. Well, until you go senile or terrify Kylie the Work Experience when you climb a ladder. However, the national debt is so unimaginably, cosmically vast that we will all be working till we are 100 anyway. Thank Dr Brian Cox, sorry, Mr Fred Goodwin, for this, not fresh-faced Cleggeron. (Young people don’t know much anyway.)
3. Where you see peculiar hair growth in the mirror, other people see experience and skills. Your clients are paying for this – they honestly like it. You can charge for those wrinkles – do so. Remember that people aged 50-64 have spent on average 13.7 years in their current job, which is impressive. (Possibly more impressively, brow threading is now acceptable for both sexes and available inexpensively nationwide.)
4. No one expects you to be, or look, young. Self-employment, for instance, is more common amongst those aged 50-64 compared to younger workers – 18 per cent of workers in this age bracket are self employed compared to a scanty four per cent of the 16-24 year olds.
5. While crimes against fashion aren’t illegal, being rude about coffin-dodgers at work is. Anyone over 35 – or with a keen interest in 80s music – can rest assured that they are protected by law from sartorial slights, and more to the point, protected as part of an increasingly huge majority. Although the media does nothing but feature those of poreless skin, the UK isn’t a young country; more over 50s are in work than people aged 16-24. Get in! Parade those coloured shoes with pride.  

Georgina Harris, Law Donut editor (and wearer of a nice comfy cardi)

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Up the Twitter

You might think your main problem with Facebook is the sheer boredom. Oh, the relentless fun of those endless updates of daily lives – how did we survive before we knew Jade Green in Payroll had dodgy tuna for lunch?

But if you’re the boss, watch it: your staff could be sharing more than their daily diet of banality with the rest of the planet. Sneaked into that gripping account might be the killer comment about clients, customers or, heaven forbid, the management, which could empty your order book faster than the tuna’s cheeky 3pm revenge on Ms Green.

Most pitifully, you can’t rely on anyone you know to be too bored to read it – or forward it. Especially not in work time or if it’s properly rude/funny. As lawyers are fond of quoting, “A good name, like good will, is got by many actions and lost by one” – from Victorian judge Francis Jeffrey, who knew the value of a Tweet-length message to business about Facebook, Twitter and LinkedIn before his time.

Your staff probably use these forums to communicate, if not to work. This has blurred the distinction between personal and work life and created much legal strife. The latest case in this area ended up at the Press Complaints Commission (PCC), who ruled a civil servant’s grumbles to her mates on Twitter about Dept of Transport cuts and a punishingly late night in the pub were “public”. Like many of us, the bleary Miss Baskerville didn’t realise we live in a public age but the Daily Mail did and she and the Dept of Transport ended up with more than a hangover.

While it might seem mean to haul a whingeing worker into court, not to mention a bit unnerving for anyone employed who isn’t on Prozac, the fact remains this employee embarrassed and discredited her employer. As social media users grow ever faster in the UK, so does the risk of this happening to your business. Like it or not, you need to take action – but what can you sensibly do without impinging employees’ privacy?

There’s no need to monitor every communication. Apart from the agonizing tedium, it’s intrusive and probably illegal. If you must, monitor it in a way that is compliant with data protection and privacy laws; for instance, you must tell everyone you are tapping their channels. Instead, create a wide-ranging social media policy from your organisation for employees and freelancers. Make sure they read it; if you don’t communicate with them they may be able to waltz off with your most valuable clients contacts, if not worse.

Explain what business information is confidential. That probably includes mailing lists, finances and new products as well as client details and computer passwords. Don’t put temptation in anyone’s way; limit access to anything juicy to those who need it and set up your IT to block exits of confidential information from your server. Remind staff that once confidential material is gone, it’s gone forever.

Tell the staff, where you can, that contact lists are yours. That covers client and mailing lists as well as your employee’s LinkedIn account. State your ownership clearly where you can – wherever they originated from. If your most useful lists contain contacts employees have introduced to the firm or brought with them, case law suggests that the whole list belongs to your firm – make this clear to staff who may, not unreasonably, believe lists containing old friends or trusted freelancers are ‘theirs’. Include this clause in employment contracts too.

Keep work phones, blackberries and ipads for professional communications only. Yes, it’s joyless – no, you don’t need to be held liable for an employee’s rudeness, harassment or bullying. Unlawful treatment of others also applies to online communication. Add this clause to your equality policy too.

Don’t let staff be rude about your business online, ever. Think about whether you can cope with identifiable staff commenting on their working life in a forum. If you can, be very clear that you won’t tolerate criticism about customers, clients or products. Include examples, such as the Facebook addicts at British Airways who were fired for declaring happy holidaymakers “fat and smelly”.

Once you’ve established a policy, employees will be clear about what they can and can’t say and be more likely to do it; they will also know they can face disciplinary action for breaching it, which should improve the safety of your business reputation and information. End of status update.

Georgina Harris, Law Donut editor

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Casual sexism? So what’s the problem?

Last week Wolverhampton Wanderers' home game against Liverpool was distinguished by a more interesting conflict off the pitch than on. Two Sky football commentators, spotting the assistant referee Sian Massey, announced that female football officials didn’t understand the rules and predicted Ms Massey would make mistakes during the match.

“Somebody better get down there and explain offside to her,” Richard Keys said of Ms Massey. Former Scotland striker Andy Gray replied: "Can you believe that? A female linesman. Women don't know the offside rule." 

The tape of the off-air conversation reached a newspaper. In the event, Ms Massey correctly called a crucial borderline decision during the match, and the two commentators have been taken off the air. Andy Gray was subsequently fired.

Hearing these ignorant comments made my blood boil. Of course I wasn’t the only one who felt this way.

What really makes me angry is that I’m fairly certain there is a large majority of likeable, normal guys out there whose response would be “What’s all the fuss about?” Several commentators have acknowledged that men’s football is rife with overt, casual sexism. And “sexism” could arguably be replaced with “racism” or “homophobia”.

These sorts of causally sexist/racist/homophobic comments are a great example of the sort of outdated behaviour the recently introduced Equality Act legislation has been put in place to stamp out from the workplace. If you allow your staff or customers on your premises free reign to voice similar opinions, you could face claims against you for discrimination.

So business owners who cannot see “what the problem is” should be worried. Allowing casually discriminatory behaviour to persist could lead them straight to an employment tribunal.

• Read more about discrimination in our set of 25 FAQs.

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Default Retirement Age to end 2011: what employers should know

The Default Retirement Age (DRA) will be phased out by law between 6 April and 1 October 2011. The main changes to business are as follows:

• About two-thirds of employers already operate without fixed retirement ages - and many of those with retirement ages already offer flexibility for workers to work longer. But this change in the law, announced in January 2011, means that in most circumstances employers with fixed retirement ages can no longer make their staff retire at 65.
• Between 6 April and 1 October 2011, only people who were told before 6 April they would be retired, and whose retirement date is before 1 October, can be compulsorily retired using the DRA.
• Employees no longer need the “right to request’” working beyond retirement - they are now allowed to continue by law for as long as they like.
• There is an exception to the DRA rules. Employers can retire staff at 65 if they can justify it – for instance, police officers and some building workers may qualify.
• The new law will also make sure that employers offering group risk insured benefits (income protection, life assurance, sickness and accident insurance, including private medical cover) do not face undue extra cost. 

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Difficult conversations with employees

We wince at the thought, but if you’re a manager you have to tackle tricky staff problems head on. This, inevitably, means the dreaded “little chat”. Simple conflict-management techniques really help - Georgina Harris explains how to reduce the pain but get results

Whether it’s a worker who is endlessly late, an employee with a flamboyant range of minor ailments or the classic idler, you’ll know that some people’s contribution to your team seems to add up to an empty chair, tight-lipped resentment from the others and low-level morale drain. If the problem’s recent, and not serious enough to warrant a disciplinary, you might be tempted to avoid spending precious managerial time sorting it out. But slackers and whingers tend not to fix themselves, and if their behaviour gets worse, you don't have an HR problem, you have a profit problem.

Or legal trouble. In 2007–08, the number of individual employment tribunal claims rose to over 190,000. Acas points out that people are also now more aware of their rights at work, which means if employers do not manage conflict effectively, they could face a court case or, more likely, an expensive settlement. So it’s worth nipping “issues” in the bud.

Start by taking control of what you can: set a time, place and date for a discussion with the employee. Most importantly, set a goal. What result do you need out of this meeting? Keep sight of your aim, before, during and after the meeting.

Plan ahead for the chat by gathering the evidence you need. Jot down examples of the problem behaviour and why it’s causing difficulties. Keeping your aim in sight, make a list of how you and the employee work together to fix the problem.

Once you’re in the meeting, explain to the employee that you are both there to restore harmony. Then ask the employee to put their side of the story. Don’t interrupt.

As they’re talking, practice active listening. Encourage your employee to be open so you can both root out the key issues. Show you understand your employee’s point of view and you are taking in the detail of what they are saying by restating what they said in your own words. That shows your responses are more than lip service, and you should be appreciated for listening.

Don’t assume your staff member can see things from your point of view. Your job might be to check the balance sheets against staff productivity; theirs may not. So, even if it seems (or is) blindingly obvious, make it clear exactly why their behaviour is a problem. Appeal to their self-interest by asking them how they think their behaviour looks to others at work.

If they get emotional, don’t respond in kind or you’ll give your power away. But don’t dismiss the role of feelings entirely; your employee needs to see you respecting and acknowledging how they feel. Getting fiery = bad news; acknowledging feelings = good news.

Avoid getting personal at all costs. While tempting, it won’t help reach your goal any faster and will make you, not your staff member, look like the team’s liability. Focus on the behaviour, not the person.

No matter how exasperating it is, refuse to engage in arguments – keep your mind trained on getting the result you want. If you need more incentive to stay calm, bear in mind it takes two to argue. And whatever comes out of you in anger could end up a bigger problem for you than a slacker team member.

Move on to a range of solutions you can finalise. Use neutral phrases to suggest behaviour changes, such as “Let’s talk about how you might do that”. Don’t say “You can’t keep doing this”, just repeat “You must arrive by 9am”. If the problems are pretty basic – repeated lateness – take them step-by-step through how they will make it in by 9am. Stay non-confrontational; arguing will not get an employee out of bed earlier. Although it’s tiring, keep relentlessly positive – if you’re faced with an endless array of obstacles to improving the performance, work together to solve them. Be patient, but be wary of making concessions you can’t offer everyone.

Once you’ve reached a solution, repeat it clearly so you both understand it. Then arrange a follow-up chat, and leave it at that. Exit the room and breathe – job well done.

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