Use of Smart Phones in the Workplace

It was reported in 2014 that the first street for mobile phone users was created in China (by all accounts, it is specially painted to instruct those walking with mobiles to keep to one side with white arrows to direct them in the right direction). I’m not aware of there ever being a second, but there may well be a need or a demand for a first in the UK. It seems we can’t get enough of our smart phones. At all times of the day and night, wherever we might be, we are checking emails, tweeting, banking, shopping, and checking Facebook. The exact amount of time we spend on our smart phones varies depending on the study you happen to read (although there an app for that), however, it’s clear that it is a significant amount of time; an Ofcom study found that the growth in smart phone use has contributed to adults spending an extra two hours per day on media and communications since 2010. Read more

When Work Becomes Personal

I have been asked many times to share the most lurid, demoralising and embarrassing behaviour displayed at office parties and events the aftermath of which I have had the ‘pleasure’ of advising employers on how to clean up. Let’s be honest; a great deal of pleasure can often be had from someone else’s ‘misfortune’ – especially if it is self-inflicted and alcohol fuelled. It provides days worth of office gossip.  You may have borne witness to a colleague who arrived at the party in a wonderful haze of glitter and perfume having spent all afternoon (most likely in the office toilets) getting ready, promptly knocking back shot after shot (it would be a shame to waste an open bar), before flirting outrageously with the boss (who knew he was so good looking out of his suit) and an angry showdown with the tea-total receptionist (she never passed on telephone messages). At the end of the night the colleague in question can usually be found, passed out, under one of the tables, but not before the fun – and the bad behaviour – were immortalised on Facebook.

This is a tame example and, sadly, far worse has taken place usually involving an element of unhealthy and unwelcome familiarity between colleagues. Prevention is better than cure but like the hangover the morning after the night before, high jinks is accepted as part of the course. It’s all harmless fun, isn’t it? It takes something serious, say, an allegation of sexual harassment for the employer to realise that perhaps it could have done more to safeguard itself and its employees. The office party, outing and corporate or hospitality events are, after all, an extension of the workplace and employers are liable for the harm that befalls their employees. And if an employer has waited until the day before the event to remind its employees of what is and is not acceptable behaviour it’s too late.

Most workplaces are a hotbed of rivalries and romances but also where close bonds are forged in the face of adversity – the same boss, working environment, similar duties. When someone has been in the workplace long enough he or she makes as many work friends as significant as non-work friends and work becomes a sanctuary from the stresses of home. As a consequence, a great deal of personal business is happening during working hours, and its more than checking mobile phones or posting on Facebook. It includes those tricky ‘people problems’ that can prove difficult to resolve because the line between personal and professional has been allowed to blur.

The most obvious example would be one person’s harmless flirtation being another’s sexual harassment. Unsurprisingly, I have regularly advised on this issue in the last few weeks and many feel that flirting and sexual harassment is not the same thing.  Where it is not unwanted conduct of a sexual nature and it would not amount to sexual harassment under the Equality Act 2010. However, the conduct is unwanted and it had the purpose or effect of either violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offending environment it would constitute sexual harassment. Whether it has this effect will depend, in part, on the individual’s perception therefore the perpetrator’s or, for that matter, the employer’s perception is of little or no relevance.

Conduct of a sexual nature can include physical, verbal and non-verbal sexual advances, touching and sexual jokes but this may not be obvious to everyone either because they are unaware of the law or they have a different moral code from most. It is in the employer’s interests to educate its workforce. For instance, a simple invitation from one colleague to another to have a drink after work in itself is unlikely to be sexual harassment, but what if over a period of time the colleague repeatedly asks the other out and tries to ‘woo’ him or her with compliments about their appearance, unwanted gifts and winking until the work event in question when they finally make their move? What if, when rebuffed, they turn nasty feeling they had been led on? Would the employee in question see anything wrong with their behaviour? A wise employer has a policy of reminding employees of their responsibilities and expected behaviours all year round and makes it clear that harassment – whatever form it takes – is not be tolerated.

Donna Reynolds is an experienced Employment Lawyer and HR Adviser offering Employment Law and HR Advice and assistance to SMEs in Fife, Edinburgh and across Scotland.

When does a gripe become a grievance?

disputesMore often than you would imagine, we are asked what to do when an employee comes forward with a problem but says “I don’t want to raise a grievance”. When does a moan or a grumble become a grievance and when does an employer’s duty to investigate a grievance arise?

There is no distinction between a gripe and a grievance and, no matter how trivial or unfounded you, as an employer, believe that employee’s problem to be, if an employee thinks he has a problem then he does. Whether or not he wishes to make a formal grievance is irrelevant; the employee has a problem and he wants you to hear it. You are now on notice that something may need to be addressed. This doesn’t necessarily mean that you now need to start writing letters and holding formal meetings – the employee has, in any event, told you that he doesn’t want you to – but it does mean that you have an opportunity to resolve an issue that could make a difference to, say, staff morale or even prevent a formal grievance.

How much you can do, of course, depends on the nature of the problem and whether or not anyone else is involved. When the problem is, for example, alleged bullying, the employee will often wish to remain anonymous and it’s difficult to see how you can comply with the implied contractual duty to provide redress of grievances in that case. However, you can take the opportunity to:

·          Firstly, speak with the employee and agree what you can do, if anything. Sometimes you may honestly disagree with their position, in which case the employee must then decide whether to accept this or make a formal grievance.

·          Secondly, and just as importantly, consider what reasonable steps you can take including revisiting and/or communicating your policies and procedures, providing the appropriate training to management and operating an open door policy to help to prevent the problem (or perceived problem) from happening again.

If you would like any further information or advice on these issues, please contact Donna Reynolds

Should the law protect against ‘fattism’?

OverweightWe are all obsessed with appearance more than we would like to admit.  We may claim to believe “beauty is only skin deep” but if that were true, the UK beauty industry would not be worth in the region of £17 billion and the UK diet industry another £2bn.

The reasons for our obsession are plentiful and complex but the simple principle that appearance matters is undeniable.  Whether we are looking at someone’s face, body or specific features such as height or hair colour, “what is beauty is good” and we infer positive traits from attractive faces.  And if we accept (rightly or wrongly) that physical attractiveness is good, do we judge those we perceive to be unattractive to have less positive traits, for example judging someone to be lazy purely because they are overweight?

Why should this matter to an employment lawyer?  Dr Sarah Jackson, of University College London, recently spoke out after conducting two studies into the physical and psychological effects of “fattism”. She has called for the law to protect against weight discrimination in the same way as the Equality Act 2013 makes it unlawful to discriminate against job applicants and workers on the grounds of nine “protected characteristics” including age, sex and disability.

Examples of fattism include jibes, taunts, receiving poorer service in places such as shops and doctor’s surgeries, and being assumed to be stupid.  If overweight job applicants or employees, or those considered “facially challenged” or less than attractive in some way, are disadvantaged at work (for example, being refused employment, passed over for promotion or bullied by colleagues) should the legal protection against discrimination be extended to include a tenth protected characteristic, namely “lookism”?

The difficulty is that age, sex and disability are objectively verifiable whereas attractiveness is extremely subjective.  The majority of people may be able to agree when considering either extremes on the attractiveness scale, but not necessarily when asked to agree on those who might be said to fall somewhere in the middle.  The other problem is that discrimination on any ground can sometimes be hard to detect – and often we’re not even conscious of our own biases.

While the law may not (yet) recognise fattism, the Equality Act does in fact offer some protection, although some behaviour complained of would require to be cited as, say, age or even disability discrimination to begin a claim.  Take, for example, a business selling gothic clothing with a vacancy of a sales assistant in its high street store looking to attract applicants who they believe exemplify their brand and can help to attract new customers into their target market. Its recruitment methods may well be based on discriminatory criteria (for example, a requirement to look young and grungy), meaning the unsuccessful applicant in their 50s and in a wheelchair, who wasn’t considered to fit the brand image, could have a claim under the Equality Act.

The best way to reduce the risk of any potential claim in respect of any protected characteristics, whether recognised by the law now or in the future, is to recruit on the basis of carefully drawn-up job and person specifications which provide objective, measurable requirements.  Remember to never judge a book by its cover – not if you want to avoid an expensive discrimination claim.

Cyber Bullying in the Workplace

Cyber bullying is probably more closely associated with children and teenagers, but digital bullying represents an extension of traditional workplace bullying that is now recognised as a growing problem. The growth of new technologies, and the anonymity offered by them, has dramatically increased the opportunity to bully and harass colleagues. And if there were fifty ways to leave your lover, there must be at least that number of opportunities for electronic intimidation capable of invading our private lives 24/7.

The good news is that many employers have sought to articulate anti-bullying principles and policies. The bad news is that some are failing to effectively implement them. In fairness, what is tagged as bullying by one person may be regarded by another as perfectly appropriate work place behaviour. Team-building is great but when does the banter become bullying? Bullying is just so diverse; it may be as subtle as simply excluding a colleague from round robin emails or as demeaning as a supervisor launching into what is effectively a public dressing down by sending an email. Many bewildered employers are simply at a loss how to effectively tackle the issue.

There is no consolidated piece of legislation dealing with cyber-bullying unlawful but there are various ways in which employees can bring employment tribunal proceedings in relation to bullying for which the employer may be liable, either directly or vicariously, if the bullying is perpetrated by employees in the course of their employment. These range from contractually based claims, such as, failing to provide a safe system of work or a breach of the implied duty of mutual trust and confidence to the statutory rights afforded, for example, under the Employment Rights Act 1996 (both examples typically depending on the employee resigning and claiming constructive dismissal). There is also discrimination legislation where the bullying or harassment is based on, or makes reference to, someone’s sex, age, race, sexual orientation, religion and/or disability. Sending racist jokes or pornographic pictures by text or email to a colleague may, if perceived as offensive by the recipient, amount to harassment.

Additionally, employees may seek to address cyber-bullying by means of the Protection from Harassment Act 1997. Though originally intended to deal with the problem of stalking, it allows an employee to complain about a course of conduct pursued by a colleague that causes alarm or distress, even though it may not amount to harassment under discrimination legislation. This is a criminal offence and substantial damages can be awarded where the conduct engaged in by employees is likely to cause harassment that has a close connection with their work.

But when are cyber-bullies misbehaving in the course of their employment? What people get up to in their private lives is largely their own business. However, if an employee conducts himself in a manner so described within the vicinity of the workplace, or during an occasion which is associated with the employer, which brings the employer into disrepute, it could result in a disciplinary warning or even dismissal. Thus a negative characterisation of a colleague posted by a cyber-bully on a workplace blog or social media could be deemed to be in the course of employment

Employers can minimise the risk faced by cyber-bullying by devising a policy that makes it clear that there is zero tolerance towards bullying and harassment. Giving a number of non-exhaustive examples is likely to be helpful. In any event, the policy should also provide employees with a safe and, at least in the first instance, private means of redress either through the grievance procedure or a specific procedure for allegations of bullying and harassment. Employers may also wish to consider whether lawfully monitoring employees’ use of email, internet and social networking sites might go some way to deterring bullies who use the employer’s technology.

8 top tips for getting best value from your Business Lawyer

It’s not unusual for many people to experience a degree of reluctance when faced with the prospect of a lawyer’s meeting. The old perception of the ‘meter running’ can be a real concern,  particularly at the early stages of business start up or development planning when your agenda may not be tightly set, resulting in an anxious client keeping half an eye on the clock.

Yet, while some find legal sessions intimidating, others, especially excited entrepreneurs keen to get started, actually find the process illuminating and even stimulating. These are the people who work smart at getting the best value from their lawyers at the planning stage rather than only calling at a crisis moment.

So how do you work smarter to get the best value from your Business Lawyer? Here are some top tips:

  1. Don’t stress: Those new to using lawyers (and sometimes those who have dealt with lawyers for many years) will often feel daunted going into a meeting, but they needn’t be. It seems that old-fashioned stereotypes of formal, old, grey men who speak in Latin and legal riddles are still quite common, but lawyers are actually just normal people (most of them anyway). They might even be nervous about meeting you. Remember why you use a lawyer in the first place – to get expertise in an area outwith your own field – so don’t worry about what you don’t know in that field. You wouldn’t expect them to know everything about your profession. And, if you don’t find the right fit with a lawyer first time around, it’s perfectly fine to try another one. It’s important to find a character match too – someone with whom you can share the ups and downs of the business journey over many years.
  2. Contact your lawyer early on: Lawyers can be useful in the very early stages of a plan or deal and a quick meeting at the outset to run a few ideas by them can be invaluable. They can help point out legal problems, suggest helpful third parties and advise on some protective steps to take (like non-disclosure agreements). This can save you a lot of time and resources further down the line. Getting in touch at the last minute to get your lawyer to rush through your documentation can cause problems and might lead to you not getting the result you expected.
  3. Send your lawyer homework: If the meeting (in person or by conference call) is to discuss a particular document, make sure you email a copy to your lawyer in advance of your meeting to give them a chance to familiarise themselves with it. That way, the time in the meeting will be much more meaningful and efficient. You don’t want to spend the meeting watching your lawyer read, or waiting until they go away to check the legislation.
  4. Be ID ready: Lawyers, as well as accountants and various other professionals, are required by law to identify you and to renew the ID they hold on file regularly. This can seem a bit of a nuisance at times (for you and your lawyer), but the rules are there for good reasons. Often clients feel that legal firms are not organised when they have previously provided ID or have been a client for a long time, but there is a compliance requirement to update ID periodically and your law firm is clearly a well run organisation if they ask you to produce ID on more than one occasion.
  5. Set out your priorities: And wishes. . .  Although your lawyer might be experienced, they can’t possibly know your business as well as you do. They might point out things you should prioritise that you haven’t thought of, but don’t assume they know what’s important to you – tell them. It’s also important to tell your lawyer what your wishes and ambitions are – do you want to sell in five years, for example? Is this a pension project or something you see developing over a long time? Do you foresee bringing adult children into the business in a few years? Just because you are not doing something right now, if any future plans are forming in your mind, do keep your lawyer informed. Knowledge at the planning stage can add value to how you structure things now.
  6. Invite others: A one-to-one meeting might be suitable much of the time, but sometimes the best value meetings can be ones where other advisers are involved. Particularly useful is when lawyers meet with you and your accountant together – it’s a great shortcut to quicker progress. If your accountant and lawyer don’t know each other – make sure you introduce them. If they don’t get along, consider a new team that does. Lawyers and accountants working closely as a team can work wonders in adding value for clients.
  7. Discuss costs and timescales: Don’t make assumptions about time or costs involved. Some things might seem straightforward, but aren’t, and the opposite can also be true. Be open and realistic about your needs and expectations. Understand that the time it takes a lawyer to produce a page of a note or a contract is more than just the time it takes to type it up. Ask who will actually undertake the work – it could be a partner, a trainee or a whole team of lawyers. Ask for an estimate or quote for costs, but understand that it won’t always be possible to get a fixed price for legal advice. Especially when other parties are involved, delays and complications can be outwith your own lawyer’s control. Long standing client relationships are a good indicator that a law firm is working efficiently, so if that’s the case, you should have confidence in their transparency of pricing. Many lawyers will be happy to consider different methods of payment, and you should explore these early on.
  8. Don’t be afraid to ask about everything: As with many situations, there are no silly questions. Your lawyer is there to advise you – they work for you – so make sure you understand what they are saying by asking questions about anything that’s unclear. This makes the lawyer’s job easier too, as you are then better able to give them the most relevant information and to make more informed decisions. You won’t be the first to wonder if something seen in a film or discovered on Google applies to your company or project – lawyers get asked a variety of questions all the time. In fact, often the most successful entrepreneurs are the ones who asked the most varied questions along the way.

At CCW Business Lawyers, we take pride in breaking down the barriers between the law and business, and try to make the ’meeting your lawyer‘ experience as painless as possible. “Business people, legal specialists” is how we approach our work – effectively becoming a member of our client’s extended team.

Please feel free to challenge me with any questions you have and if you would like to explore any aspect of business law or value for money when using Business Lawyers please don’t hesitate to contact me.

Alison Marshall, Partner

alison.marshall@ccwlegal.co.uk

01383 608206

Smile! We’re at the Scottish Dental Show in May. . .

The team at CCW Business Lawyers are eagerly preparing for the Scottish Dental Show at Braehead Arena in Glasgow on 13th and 14th of May.

As specialists in the legal support of dental practices across Scotland, we are looking forward to seeing our current clients and meeting new faces at our shiny new stand. We support our dentistry clients from our offices in Fife and Edinburgh and advise on everything from partnership planning including arrivals and departures to commercial property purchase, sale or lease negotiations, employment law, contractual agreements and incorporation or business exit.

Partner Michael Dewar, who specialises in dilapidations negotiations and has a track record of helping dental practices navigate unforeseen bills of up to £500,000, will be there in person. If you have any legal queries or issues, why not book a free initial consultation with Michael while you’re attending the show?

Just email Jennifer.wilson@ccwlegal.co.uk or call 0845 22 33 001 to book a time with Michael Dewar or one of our other Business Lawyers on either the 13th or 14th of May at the Scottish Dental Show.

Or feel free to just drop by for a chat. We’d love to meet you and tell you more about why we are Scotland’s favourite dental practice law firm.

Relocating a Medical Practice to a Health Centre – 3 points to consider

The BBC recently reported that NHS Lothian has announced that it has entered into contracts for construction of three new £27.6 million health centres in Edinburgh and West Lothian.  The centres will provide accommodation for GP practices alongside other health-related services, including podiatrists, therapists and dentists.

You can read the full story here http://www.bbc.co.uk/news/uk-scotland-edinburgh-east-fife-35961007 ]

Completing these contracts is a major achievement for the Scottish Government’s equivalent of Private Finance Initiative, the Scottish Futures Trust (SFT).   A number of these projects had been slow in fruition and there was real concern in the second half of last year that the SFT might breach European accounting rules, causing all of the SFT projects temporarily to be suspended.

The SFT does also give doctors a further method of securing new health centre accommodation and shows the variety of public funding routes available to general practitioners wanting to build, or see built, new surgery premises.  Not long ago the more common model of privately financed health centres was a standard 25 year commercial lease, typically financed by a specialist GP lender with rents reimbursed by the local health board.  Next, specialist health care developers became active, building health care centres directly and entering into leases with GPs.  Now most health boards favour larger multi-practice health centres buttressed by satellite or complimentary services.

Practices wishing to move to new surgeries at least now have some choice over how to finance new health centre premises.  The inevitable difficulty for GPs is, of course, persuading the health board to foot the bill for such premises (health boards will usually reimburse 100% rent to practices) and in minimising their liability for repairs and running costs of potentially expensive new premises.

How you contract for your space can become a minefield for doctors, dentists and medical practices as this is often a ‘once in a lifetime’ negotiation to tackle.

Here are my top tips to consider for any GP practice thinking of moving into a new health centre.  Take account of three points:

  1. Fact find the hidden costs – find out early on the likely running costs of the premises; as new health centres typically include large common areas, service charges and running costs can be significantly higher than for existing premises.
  1. Take stock of liabilities– work out the total exit costs from the practice’s existing premises – if, for example, the practice occupies leased premises, there may be significant repair costs at the end of the lease.
  1. Review the practice agreement – it is essential to review and, if required, update the practice’s partnership agreement before entering into any occupancy agreement.

As a commercial property specialist with a track record in successful contracting and negotiating for healthcare professionals I am happy to respond to queries from individuals and partnerships as well as the media on this topic. You can contact me directly on 0131 220 7605 or email me at michael.dewar@ccwlegal.co.uk. You can also learn more about our services for medical professionals here http://ccwlegal.co.uk/your-needs/medical-profession/