When Office Romance Turns Fifty Shades Darker

It’s no surprise that so many of us meet  our significant other at work; we spend a lot of time with our work colleagues and often more time than we spend engaged in personal activities. However, cupid’s arrow doesn’t always strike it lucky and not everyone gets their happily ever. Office romances can often be as short lived as the good biscuits in the office biscuit tin and cause more trouble than a gust of wind to Donald Trump’s hair when colleagues fall out of love.

There’s no employment law against office romance and, in any event, it wouldn’t make much sense for employers to ban relationships at work because for some the risk of being caught would make it all the more fun. Love contracts are commonplace in the US but to dismiss employees for partaking in a ‘romantic liaison’ or office romance may result in claims of an unfair dismissal and sex discrimination.

And yet they have their obvious problems; one half of the couple doesn’t want things to end or the feeling isn’t mutual and flirting or sexual advances are most definitely not welcome. The possibilities for sexual harassment complaints are endless. There are also other issues to consider. For example, one half of the couple may have the power to make decisions over the other’s role. This could give rise to a conflict of interest and accusations of favouritism from jealous colleagues, and depending on their respective positions in the business how can the employer be sure that confidential information remains just that?

Rather than have a policy exclusively dealing with dating or romantic relationships between co-workers, employers should think carefully about any type of work relationship that could lead to some of the same issues arising in romantic relationships including favouritism, reduced productivity and conflict of interest and recognise that these relationships may occur between a variety of different individuals such as co-workers, clients and customers. Of course, the behaviour or conduct that will not be tolerated in the workplace including inappropriate physical contact or language or personal use of company communication systems should also be very clearly explained so there can be no doubt about the standards expected in the workplace whether the relationship in question is romantic or strictly professional.

Donna Reynolds is experienced in Employment Law and HR matters advising SMEs in Fife, Edinburgh and across Scotland.

Head over heels for workplace dress code policies?

If you had forgotten the furore in 2015 when Nicola Thorp was sent home from work, without pay, after refusing an instruction to buy a pair of shoes with at last a two-inch heel to replace the flat shoes she had worn to work, then you may have been reminded of it this morning. A Report published today by Two Commons’ committees has called for a review of equality legislation after gathering evidence of sexist instructions issued to hundreds of female worker. These included instructions to dye their hair blonde, to wear revealing outfits and to constantly reapply make up.

Every workplace has different dress codes and expectations, so a list of unacceptable clothing items in the policy makes it clear for everyone what is expected (it can deal with other items too such as tattoos, piercings, hair styles). However, the issue is whether the requirement to wear high heels is sex discrimination because a man would not be required to wear high heels. What may surprise many is different requirements for men and women in a dress code will not amount to sex discrimination, provided it applies a conventional standard of appearance and taken as whole, rather than item by item, neither men nor women are treated less favourably in its enforcement.

The Courts and Employment Tribunals have been clear about this principle; so, a requirement for men to have hair “not below shirt-collar length” which did not apply to a woman or a requirement for men to wear a shirt and a tie but women only to dress appropriately and to a similar standard is not discrimination. If we imagine then a dress code that requires women to wear two-inch heels and men to wear only Brogues would that be sex discrimination ?

The other point that appears to have angered some is the idea of employees being “forced” to comply with the dress code. Firstly, you’ll not be surprised to learn that an Employment Lawyer is all in favour of a policy on dress code; it is important in maintaining dress standards because while it may seem obvious to an employer that, say, flip flops should not be worn in the office, a clear list of do’s and don’t’s avoid the need to send someone home to change because it didn’t occur to him or her that it was inappropriate. Secondly, employers “force” their employees to comply with all manner of terms and conditions of employment, policies and procedures. That is the very nature of the employer/employee relationship. In return, the employee receives his or her wage. Unless it is being suggested an employee should be dismissed for their first offence (and as an Employment Lawyer I’m not) then it’s reasonable for an employer to ask its employees to comply with its policies and give any employee not complying the opportunity to do so before considering taking action under the disciplinary procedure.

The Report has found that current equality laws are inadequate. My own personal view is they are, and what employers need is help to better understand their rights and obligations. A good place to start is Acas and you’ll find useful information here

Donna Reynolds is an experienced Employment Lawyer and HR Adviser advising SMEs in Fife, Edinburgh and across Scotland.

Your mobile phone or your business?

The vast majority of employers have a policy on the use of personal mobile phones in the workplace where, typically, they either place an outright ban on employees using mobile phones during working hours or personal use is restricted to certain times of the day for example, during breaks or in the case of an emergency (and if you haven’t updated your policy to cover smartwatches you should). However, ask those same employers how many of them have disciplined employees for breaches of this policy and it’s likely to be relatively few. Of course, this may just be because their employees can be particularly adept at hiding what they’re really up to.

Well it seems that the success of your business may depend on how well you police the use of mobile phones in the workplace. Management of the England national rugby union team are cracking down on players’ use to improve their skills. Dr Sherylle Calder, the newly appointed Visual Awareness Coach, said “In the modern world, the ability of players to have a good awareness is deteriorating because of mobile phones. We will be working hard on awareness which helps you make effective decisions under pressure”. Reported here at Daily Mail

Could this apply to the world of business? And if so, what if all it took to improve your employees’ ability to make good decisions and therefore improve your business was a break from mobile phones? It might just be worth a try – just don’t forget to have Occupational Health on speed dial to help deal with the withdrawal symptoms.

Donna Reynolds is an experienced Employment Lawyer and HR Adviser providing legal and practical advice to employers in Fife, Edinburgh and across Scotland.

Fife Business Awards 2017

AND THE NOMINATIONS ARE. . . 

There’s still plenty of nail biting to go, but the first leg of the eagerly anticipated Fife Business Awards 2017 is over, with the shortlist announced for each of the 11 categories.  Here at CCW we are delighted that a number of our clients appear on the nomination list, a list that spans an intriguingly diverse range of businesses, from veg producers and craft brewers to signmakers and technical manufacturers.  It just goes to show the breadth of enterprise in Fife – it’s what these highly regarded awards are all about.

With categories from Most Enterprising Start Up to Success through Innovation, the awards are carefully designed to be relevant to organisations both large and small (similarly reflected in our own client list) and three companies have now been shortlisted for each award category.  That makes a total of 33 Fife businesses already singled out as potential prizewinners.  The shortlist is as follows:

Most Enterprising Start Up Company
• Bay Solutions Ltd
• Influx Recruitment Limited
• TaxAssist Accountants

Best Performing Business (Under 50 Employees)
• Kingdom Maintenance
• Sephra Europe
• Silverdyke Park

Best Performing Business (Over 50 Employees)
• Avenue Care Services
• Brand Rex-Limited
• Ingenico

Developing the Young Workforce
• CR Smith
• Independent Mobile Phone Consultants
• Realm Construction Ltd

Excellence in People Development
• Fairmont, St Andrews
• Fife Fabrications
• Kettle Produce

Success Through Sustainability
• Fife Fabrications
• Ivan Wood & Sons
• Kettle Produce

Excellence in Tourism
• Morton of Pitmilly
• Rufflets Hotel
• Silverdyke Park

Success through Export
• Eden Mill
• Ingenico
• Sephra Europe

Excellence in Customer Services
• Bright and Beautiful
• Byron Hairdressing
• Eclipse (IP)

Success through Innovation
• Fife Fabrications
• John Young Signs
• Peeltech

Excellence in Food & Drink
• Fairmont St Andrews
• Scottish Food Guide
• The Adamson

Organised by the Fife Chamber of Commerce with Business Gateway Fife, these awards are a serious showcase for everything the commercial sector of Fife can offer to clients, customers, employees and investors, and that is the principal reason CCW celebrate the awards each year.

All will be revealed at the gala dinner on Friday 31st March which will be held at Rothes Hall, Glenrothes, hosted by celebrity broadcaster, Grant Stott.  Last year’s event saw around 300 guests attending, testament to the fact that these awards are now a real highlight of the Fife business calendar.  We’re looking forward to both supporting and celebrating our clients, and indeed the whole of Fife’s business community.

For further information about the Fife Business Awards, please visit www.fifechamber.co.uk

Why Uber Drivers Won Their Case for Worker Status

Establishing an individual’s employment status is an important but often difficult exercise to undertake and we were reminded of this by the recent landmark Employment Tribunal ruling Aslam and ors v Uber BV and ors https://www.judiciary.gov.uk/judgments/mr-y-aslam-mr-j-farrar-and-others-v-uber/ The judgement is worth reading because it highlights just how unclear the definition of worker is, perhaps more so the case concerns new technology and new ways of working. It also makes clear that it is not a simple tick box exercise which, when completed, can definitively determine an individual’s status rather, there is a statutory definition of “worker” as well a vast number of cases decided over the years to consider. This judgement does not change anything and it is only the first step as Uber has said that it will appeal to the Employment Appeal Tribunal.

So what where the facts and circumstances in the Uber case that helped to identify the drivers as workers? With regard to the nature of the relationship between Uber and its drivers (or “partnership” as preferred by Uber), the Tribunal noted that while the terms for passengers state that Uber is the drivers’ agent and drivers can accept or decline work through the Uber app, the following points are relevant:

  • Uber interviews and recruits its drivers. Drivers have to present themselves and their documents to Uber before being accepted, which amounted to an interview albeit not a searching one.
  • The driver is given the first name, but not the surname, of the passenger.
  • The driver is not aware of the destination of the passenger until the passenger has been collected.
  • The driver is expected to follow the route as suggested by the app and any deviance from this route must be justified by the driver.
  • The calculation of the fare is done by Uber, although the driver can charge a lesser, but not a greater, fare than that suggested.
  • Uber handles passenger complaints and deductions can be made to the drivers’ payments if passengers complain they have been overcharged, sometimes without involving the driver affected.
  • Uber accepts the risk of loss for example, where a passenger soils a vehicle or in the case of fraud, which if the drivers were genuinely in business on their own account would fall on them.
  • Drivers supplied their own vehicles and maintained them.
  • Drivers are not at liberty to exchange contact details with passengers.
  • Drivers who decline 3 trips in a row are liable to be forcibly logged off the app for 10 minutes.
  • Drivers can work for other organisations as well as Uber.
  • Uber does not provide any clothing or uniform.
  • Uber’s rating system was found to be a form of performance/disciplinary procedure.
  • Uber reserves the right to unilaterally to amend the drivers’ terms.

The Tribunal also regarded with great scepticism Uber’s claim that they were not providing transportation systems but were in fact a technology services provider, saying that “the notion that Uber is a mosaic of 30,000 small businesses linked by a common platform is faintly ridiculous”.

The main reasons for the decision are as follows:

  • no driver was in a position to grow their own business, nor were they provided with any leads;
  • the supposed driver/passenger contract was pure fiction which bore no relation to the real dealings and relationship between the parties;
  • it was not real to regard Uber as working for the drivers – the only sensible interpretation was that the relationship was the other way around; and
  • drivers provided their work for Uber pursuant to a contractual relationship. The drivers made themselves available to carry Uber passengers to their destinations for reward.

What is interesting is that the Tribunal said that none of their reasoning should be taken as doubting that there could exist a model in which drivers were not employed – it was just that this particular model did not achieve that aim.

What does this mean for the drivers? A worker is entitled to a number of employment rights including:

  • National minimum wage
  • Statutory sick pay
  • A maximum 48 hour average working week
  • Daily and weekly rest breaks
  • Whistleblower protection

Merely changing contracts will not be enough to avoid more cases being brought by drivers. For example, a worker who does not receive the national minimum wage may bring a claim for an unlawful deduction from wages seeking payment of arrears going back up to 2 years from the date of the deduction or the last in a series of deductions. Alternatively, the worker may bring a breach of contract claim in the civil courts seeking payment of arrears going back up to 5 years before the claim in Scotland.

Although this is only a first step, individuals are being advised by their trade union and legal advisors to proceed on the basis that they are workers and look to enforce their rights. Businesses should not only revisit its contracts and agreements they should also ask themselves what the practical reality bear is and do they need to rethink their model if they wish to avoid worker status.

 

Donna Reynolds is an experienced Employment Solicitor and HR Advisor advising SMEs in Fife, Edinburgh and across Scotland on Employment Law and HR issues.

 

Happy staff = award-winning CCW client

We are thrilled for our long standing clients, Abbeyford Leisure, who have been named one of the top places to work in the UK. As Abbeyford Leisure’s legal partners, we are particularly delighted that it is the company’s own staff who have voted their employer as one of the best in the country. Donna Reynolds, our Employment Law Partner advises Abbeyford on Employment Law and HR, so it’s an area close to our hearts.

Abbeyford Leisure has been successfully operating holiday parks for over 50 years.  Based in picturesque Fife, Scotland and North Wales they specialise in creating first class holiday experiences in lovely coastal locations, with award-winning facilities, and clearly retain very contented people working for them!

The award is part of The Sun’s Best of British initiative which celebrates UK-owned businesses which create jobs and keep the economy growing.  Abbeyford Leisure has ranked higher than many household names, including Tesco and Premier Inn and is the only holiday operator to receive such an accolade. Abbeyfield Leisure is pleased as punch, as are we – it’s a fantastic achievement for this dynamic organisation.

Abbeyford Leisure Chairman, David J Evans said: “We’re delighted to be recognised as one of the best companies to work for in Britain. We have a hugely dedicated team of employees across our award-winning holiday parks in Scotland and Wales and The Sun’s Best of British accolade is testament to how we, as a team, work together to make Abbeyford Leisure not only an enjoyable company to work for, but a company where your career can flourish. Our staff retention is second to none – we’re proud of that and proud of our team.”

CCW Partner Donna Reynolds and the rest of the Employment Law and HR Team heartily echo those sentiments and would like to congratulate Abbeyford Leisure, whose fantastic working environment and staff relationships clearly reflect the great quality of their product and their business.

Rejecting a Flexible Working Request

All employees who have worked for their employer for more than 26 weeks have a statutory right to ask for flexible working and the reason for such requests is not confined to those relating to children and child care but can include everything from a desire to volunteer to more time to walk the dogs. However, the more typical scenario is a mother returning from maternity leave requesting to work part time hours rather than full time hours as she did previously.

For those employees whose requests for flexible working are rejected they can bring tribunal claims for breaches of the flexible working legislation and it is not uncommon for claims of direct or indirect sex discrimination to be brought at the same. It is the latter which come with uncapped compensatory awards that worry employers; can it legitimately put its own interests above those of its employees?

Yes it can, said the employment tribunal in the recent case of Whiteman v CPS Interiors Ltd and others. Ms Whiteman, a designer, requested to reduce her hours, work from home and to do most of her work in the evenings following her return from maternity leave after having twins. The employer accepted her request to reduce her hours but refused her requests for both home working and evening working. It was of the opinion that the collaborative way of working its designers have together with the fact that designs often have to be changed at short notice meant working at home mainly in the evening was not possible.  Ms Whiteman resigned and brought claims for breached of the flexible working legislation, constructive dismissal and indirect sex discrimination.

The employment tribunal stated “It is a perfectly proper answer to a flexible working request for an employer… to say ‘granting this request would not be in the best interests of our business; we believe what has been requested would be detrimental to our business in that, at best, it would cause us minor but more than minimal inconvenience’… although it may in certain circumstances be uncharitable to do so, it is not unreasonable for an employer to put…its own interests above those of the employee when considering a flexible working request”.

An employer is therefore not required to live with inconvenience caused to its business by accepting a request to work flexible simply because to refuse would cause greater inconvenience to the employee in question. Provided, its approach is not discriminatory, an employer can reject a flexible working request.

Donna Reynolds is an experienced Employment Law Solicitor and HR Adviser providing help and guidance to SMEs in Fife, Edinburgh and across Scotland.

Should Pokemon Go or Stay in the Workplace?

Unless you’ve been stranded on a desert island you’ll have at least heard of the reality game Pokemon Go,  all the kids (and adults or maybe even you) are playing on their smartphones. Players walk around the real world catching virtual monsters in places near their phone location and training them to fight each other. The main display for the game is a map based on the player’s surroundings and created using their GPS.

Its success has been phenomenal with Nintendo’s stock prices soaring. It has been credited with encouraging people to exercise more, helping sufferers of depression, anxiety and agoraphobia and  bringing players together at common areas to capture monsters and interact with each other. But do the potential benefits of increased physical activity, office camaraderie and productivity as some have claimed justify allowing employees to play Pokemon Go in the workplace?

At the risk of being called a killjoy there are very few workplaces where the use of personal devices is not restricted and for very good reasons. For example, if employees were not restricted to using their smartphones to, say, break times then, in all likelihood, there would be a frighteningly high number of employees using them when they want for anything they want – including hunting for Pokemon. It’s no secret that games such as these can become addictive; can you trust your employees to put away their smartphones when their lunch break has finished if they are presented with an opportunity to catch one of the rarest monsters?

Not only is there the potential to distract employees from their work, it can distract them from the dangers of the real world. Slips and trips in a warehouse or dangerous contact with machinery on a production line are only two examples of accidents that could become an HSE investigation.

Some players take screen shots of monsters and post them on social media. This could cause embarrassment and affect business not to mention disclose confidential information or trade secrets for all to see? There is also the security risk the app presents to your business when it accesses a range of personally sensitive date from the smartphone.

These are but a few of the reasons why it’s not a good idea to allow game play in the workplace  and, in fact, certain jobs should demand a total ban because they pose a safety hazard for example, those that involve operating heavy machinery or driving. However, if you are not against a complete ban it’s important to set rules and make sure your employees know and understand these rules. For example, game play is not permitted during specific times of the day or in specific areas of the workplace and posting pictures on social media is not permitted.

Try as we might it’s perhaps impossible to unplug  in today’s mobile, digital world but it’s not impossible to play safe.

Donna Reynolds is an experienced Employment Lawyer and HR Adviser helping SMEs throughout Fife, Edinburgh and Scotland

A Year in the Life of an Employment Lawyer

Wednesday 28 September 2016 12 – 2 pm

Back by popular demand, we are pleased to invite you to our next Employment Forum on Wednesday 24 September at 12 pm.

Find out what has been keeping me busy over the last 12 months including Tribunal Hearings, gripes and grievances, disciplinary and dismissals, discrimination claims and redundancies and learn a few ‘tricks of the trade’ that you can put into practice in your workplace.

As business owner, HR professional or manager you fulfil a very important role in the business; you are responsible for managing employee relations. You are expected to keep up-to-date with all developments in Employment Law and HR practices and the recent decisions of the employment tribunals. You are required to be the authoritative, voice of reason with the final word on all employment related matters in your workplace.

But sometimes you don’t have the answers and you don’t have the time to find them or have similar experiences to call upon. To make matters worse, you may work alone and the confidential nature of your job means you can’t talk to any of your colleagues. It can be a difficult and lonely job.

Join others just like you on Wednesday 24 September who do a great job in their chosen industry or sector but, from time to time, benefit from meeting with, and learning from, others who have experience of the very problem they need help with. Chapham House Rule applies making for a relaxed and free discussion.

This event is taking place at our Dunfermline office, it’s free to attend and lunch will be provided. Book early to secure your place.

Contact Donna Reynolds. donna.reynolds@ccwlegal.co.uk

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