Tag Archive | "Law"

EMPLOYEE MONITORING

Tags: , , , ,

EMPLOYEE MONITORING


Employee monitoring methods should be considered carefully

A recent decision by the Grand Chamber of the European Court of Human Rights has brought the question of employee monitoring to the forefront of employers’ minds once again. The Grand Chamber in Bărbulescu v Romania examined the ability of employers to monitor their employees’ work, email accounts and in particular, the extent to which employers can check whether employees are using email accounts for solely work-related purposes.

Mr Bărbulescu was dismissed by his employer for unauthorised personal use of the internet. The dismissal arose as a result of allegation that Bărbulescu had been using a Yahoo messenger account whilst at work. Following various decisions in Romania and in the European courts, the Grand Chamber of the ECHR determined that Bărbulescu’s private life and correspondence had been infringed.

It is worth noting that employers can be found to be vicariously liable for the actions of their employees in the course of their duties. This means that employers may find themselves liable for their employees’ actions if the employee causes damage or loss to a third party. Employers therefore often find that they have a heightened interest in understanding – and keeping tabs on – the activities of their employees.

EMAIL AND INTERNET USE
The Grand Chamber decision in Bărbulescu v Romania highlights the fine balance between an employee’s reasonable expectation of privacy and an employer’s right to check the activities of those working for them. It was not sufficient for the employer to simply inform the employee that there was an internet usage policy in place but instead, the Grand Chamber found the employee should also have been made aware of the extent and nature of the monitoring activities that the employer was putting in place.

In the UK, the monitoring of employees is heavily regulated by existing legislation, which places limitations on the
powers of employers to monitor their employees’ private communications, including the Data Protection Act 1998 (and soon to be the General Data Protection Regulation, which comes into force in May 2018). Employers must provide
legitimate reason to justify the monitoring of an employee’s communications. This requires some form of assessment to be in place in order to decide whether legitimate reasons are in place.

The importance of an assessment can also be found in the Information Commissioner’s Employment Practices Code in the UK. The Code recommends that employers carry out an impact assessment, taking into account factors such as the purpose behind the monitoring arrangement and any benefits or adverse effects that arise from this monitoring.

Ultimately, employers must be satisfied that they have achieved the correct balance between protecting workers’ privacy and the interests of the business. Carrying out an impact assessment in relation to communications monitoring is one way in which employers can demonstrate that they have achieved this. Employers should also ensure they have a communications monitoring policy in place and where possible, this should be backed up with specific training on the use of IT and email systems.

DRUG AND ALCOHOL MISUSE
Employers have a responsibility to look after the wellbeing, health and safety of employees whilst they are in the workplace, and this duty may extend to ensuring that employees are not misusing drugs or alcohol.

The extent to which employers will need to monitor their employees’ use of alcohol or indeed drugs, will depend on the particular environment in which the business is based. For instance, in some circumstances, it may be appropriate for employees to consume alcohol whilst entertaining clients. For other industries, however, employers will need to be much more cautious about their employees’ use of alcohol or drugs. Those whose staff use vehicles as part of their jobs, for instance, will need to maintain a higher level of vigilance in this respect.

Employers may want to consider whether it is necessary to carry out drug screening or alcohol testing. This will – of course – only be relevant in particular industries, however, for those where this is likely to be an issue, then employers should ensure that reference to screening or testing is included in a policy given to all staff.

Even with a drug screening or alcohol testing policy in place, employers will not be able to require staff to submit to testing without their specific consent to do so. One option is to draft the monitoring policy to say that withholding consent is a misconduct offence in itself.

TRACKING
Employers whose staff work ‘off-site’ – say when driving – may find it particularly difficult to know the exact movements of their employees during their working hours. Improvements in technology have, however, made employee accountability in the workplace much easier in recent years. Again, industries which rely on employees driving vehicles may find this kind of technology particularly useful. GPS, for instance, highlights if drivers are deviating from their planned routes or if there is traffic preventing them from reaching their destination.

If employers do intend to monitor vehicles they should ensure that they provide a policy which sets out the nature and extent of the monitoring. Employers should satisfy themselves that their employees are aware of the policy that is in place, what information is recorded and the purpose for that recording. Where the vehicle is used for both private and business use employers, should be particularly wary, as monitoring movements when the vehicle is being used privately will rarely (if ever) be justified.

CONCLUSION
Monitoring employees can take place in a variety of ways and employers should carefully consider which form of monitoring is necessary for their business, without being unnecessarily intrusive to the privacy of staff. Carrying out impact assessments are often a useful way of determining whether the monitoring is truly justifiable.

Case law such as Bărbulescu v Romania clearly demonstrates that the courts take the privacy of staff in the workplace very seriously. In order to reduce the risk of employee complaints, employers should try to be transparent and honest with employees about monitoring which they may be subject to.

Getting employee monitoring wrong can have a significant impact. Employers could face discrimination complaints or employees resigning and claiming constructive dismissal. Employees could argue that their rights under the Data Protection Act 1998 – or even the Human Rights Act 1998 – have been infringed. In addition to the cost and time associated with defending a claim, an employer could be found liable by a court, employment tribunal or the Information Commissioner’s Office, and ordered to pay compensation.

Posted in CAT Know-How, Factor & Supplier News, Garage News, News, Retailer NewsComments (0)

DRIVING CHANGE: HOW COMPLACENCY CAN KILL

Tags: , , , ,

DRIVING CHANGE: HOW COMPLACENCY CAN KILL


Driving for work is a ‘work activity’ like any other. However, our familiarity and, in some cases complacency, with the activity can make it difficult to manage despite it being one of the greatest risks we face. With the trade running fleets of delivery vehicles, the issue of road safety should be high up on the agenda. Indeed, it’s not hard to find web-hits such as ‘Van driver hurt in crash’ or ‘Truck, lorry and van driver injury compensation claims’.

THE LAW
There is a raft of criminal offences that capture individual drivers who decide to break the law. These include death by dangerous driving, careless driving and driving without a valid licence or insurance. The law recognises that properly licensed drivers have a personal obligation to take care of themselves and others on the road.

However, organisations, managers and colleagues could also be implicated if they are considered to have “aided and abetted” that criminal behaviour. A potential example of this would be where a manager
knew that a driver’s insurance had expired but did not alert anyone within the business or prevent that individual from driving. Organisations often collect vast swathes of information that are relevant to managing driving, but are not used as such. Working time details, health information and job descriptions are all good examples.

Prosecutions for ‘aiding and abetting’ offences remain rare, but a fatal road death may result in a Coroner’s Inquest and the organisation having to answer some difficult and probing questions on behalf of the deceased’s family.

Within the more typical health and safety arena, prosecutions could arise where the culture of the organisation is such that driving for work is not managed properly and individuals are put at risk.

In fatal incidents, under the Corporate Manslaughter and Corporate Homicide Act 2007, an organisation can be held liable if “working regimes, dangerous or illegal practices or negligence have contributed to the death”. The police will investigate for the offence of corporate manslaughter and will want to establish the attitude of senior management towards managing driving for work. Were policies in place and enforced, and was there real and visible leadership from the top?

Further, the Health and Safety at WorkAct 1974 states that organisations have a duty to ensure, so far as is reasonably practicable, the health and safety of all employees while at work, and that others are not put at risk by work-related driving activities.

Beyond the broad 1974 Act there are various other health and safety regulations that apply to work activities such as driving. The key action point is to appreciate driving for work as a work activity and treat it as you would any other, providing suitable instructions, information and equipment based on a sound risk assessment process.

CONSEQUENCES
The most obvious consequence of getting it wrong is that an employee or members of the public is seriously injured or killed as a result of your organisation’s driving activities. Organisations recognise the moral reasons for keeping people safe.

In addition, there is the risk of a subsequent prosecution for individual criminal offences or for organisational or management failures.

The potential consequences of getting health and safety management wrong have become all the more severe since February 1 2016, which saw the introduction of a Sentencing Guideline for health and safety offences and corporate manslaughter (among others) and creates the potential for higher fines and prison sentences than we have seen historically. The guideline uses ‘potential harm’ as one of the determinants when deciding upon a sentence; the potential harm associated with driving is obvious.

In addition to a criminal prosecution, you may have to deal with any civil claims brought against the business by individuals who have been involved in an incident. Insurance may be in place for organisations and those that use company cars, but what about those who use their own vehicles? Everyone ‘driving for work’ needs to have ‘business use’ insurance. Without it, insurance policies can be revoked and the individual or organisation is left to pay.

Aside from financial implications, incidents and prosecutions can attract significant negative publicity, which in turn could affect an organisation’s brand and reputation. Many vehicles now bear corporate logos and branding which can have unwanted consequences in the event of a serious incident. The impact of an investigation can also create significant business interruption, with the seizure of vehicles, computers and other records, even if a prosecution does not result.

Driving for work can be a risky business and should be taken seriously by the whole organisation; not just the driver.

Posted in CAT Know-How, Factor & Supplier News, Garage News, News, Retailer NewsComments (0)

Tags: , , , ,

DEATH OF A BUSINESS PARTNER


Christine Green – It’s a subject that most avoid, but having a business partner die without a will can lead to serious problems

Christine_green

It is often said that we should live our lives as if we were going to die tomorrow. This advice is particularly true for businesses owners. But sadly, this group is often the least likely to have made the appropriate arrangements.

An unhealthy proportion of people don’t have a Will. Throw into the mix a business and their private and business affairs are heading for disaster.

Take the (fictitious) case of Mark, a 45-year-old man who has co-habited with his girlfriend, Charlotte, for the last 20 years and with whom he has three children. Mark owns a garage in partnership with two longstanding colleagues. Mark dies suddenly of a heart attack. On going through his papers, Charlotte finds that he has no Will and no life insurance. There is no Partnership Deed, although the three partners have borrowed heavily against their individual assets. The garage has fixed assets of approximately £1,000,000 and creditors of approximately £500,000.

On Mark’s death, the partnership terminates automatically as there is no Partnership Deed. The garage will then have to be valued and final accounts drawn. Mark’s personal assets consist of the house (subject to remortgage and other assets, together worth £600,000). His children are 18, 15 and 10, and Charlotte is horrified when she finds that the house, in Mark’s sole name, has been charged with the partnership loan.

In the absence of a Will, Mark’s three children are entitled to his estate on intestacy. The eldest is entitled to take his one-third share outright, but the remaining two thirds will be held in trust for the other two children until they reach 18. Administrators will have to be appointed to manage the estate and they will eventually become trustees of the children’s trust. No provision is made for Charlotte on intestacy as she is not married. She makes a claim against Mark’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 on the basis that reasonable provision has not been made for her on intestacy.

There will need to be two administrators as two of the children are under age. Acting on behalf of the children, they challenge the valuation of the business. There are also some difficult negotiations with HMRC that need to be dealt with.

There are ways in which these difficult scenarios could be avoided. In the first place, there should be appropriate provisions in the Partnership Deed covering the situation if one of the partners dies in service. Many businesses operate in the absence of any or adequate governing documents. The presence of a clause setting out the procedure on the death of one of the owners will prevent the termination of the partnership on death.

Last_willVALUATION
Often, the Partnership Deed may provide that the surviving partners have an option to purchase the deceased’s share of the business. An agreement should deal with the basis of a valuation of the partnership assets, including any value attributed to goodwill. This may be the current market value at the date of death or the historic value at which assets are carried in the partnership accounts. It should also provide for referral of any dispute to an agreed arbitrator.

INSURANCE
Many partnerships and companies consider putting in place insurance policies to provide funds enabling them to purchase the deceased’s interest in the business. This avoids the difficulties that will be faced by the partnership having to raise a potentially large amount of cash to buy out the deceased’s estate.

Clearly, the easiest option is for business partners to simply make a Will. If this is done, you can choose who will be the executors. The Will should give the executors powers to deal with the business for a limited period after death and would confer on them all the powers held by the deceased to enable the garage to function smoothly until decisions can be made. It will also reflect any provisions in the Partnership Deed as to payment.

INHERITANCE TAX
The Will can also assist with tax planning. Business Property Relief of 100% is available to reduce the potential inheritance tax liability arising in relation to business assets. Providing that the deceased has owned the
assets for two years before death the relief covers:

  • A business;
  • An interest in a business;
  • Unquoted shares in a company;

At the time of drafting the Will, it is not possible to know whether a business relief will apply at the date of death. The nature of the business may change and the garage may hold large cash reserves that will not qualify for Business Property Relief. For this reason, the Will may provide that the business interest is transferred to a discretionary trust. The trustees can then assess the situation on death and deal with it in the most tax-efficient manner.

Business owners plan ahead as soon as possible. It may mean having uncomfortable discussions with a family or business partners but procrastination can result in serious problems.

Posted in CAT Know-How, Factor & Supplier News, Garage News, NewsComments (0)

Tags: , , ,

TAKEN TO TRIBUNAL: WHAT TO DO WHEN YOU RECEIVE A CLAIM


Mark Stevens Don’t sit on your hands if a claim comes through: Prompt action may save you in the long run

Mark Stevens

Mark Stevens is a solicitor at Veale Wasbrough Vizards

Since 2013 most employees wishing to pursue an employment tribunal claim against their employer have to pay a fee to do so. So if your business receives an employment tribunal claim – an ET1 form – what steps should you take and what are the key points to bear in mind?

DIARY DEADLINE
The priority is to make sure the response form is filled in smartly. Employers have 28 days from receipt of the ET1 to respond to the claim by filing form ET3 with the appropriate employment tribunal. The importance of meeting this deadline cannot be overstated. If you miss the deadline, the employment tribunal may enter a default judgment against you. The impact of a default judgment is that you cannot play a part in the claim or defend yourself. Extensions will only be granted by the employment tribunal where there are good grounds for doing so.

CONCILIATION
Employers should always check that the employee has submitted their case within the allotted time. The general rule is that an employee has three months from the termination of their employment to contact ACAS to initiate pre-claim conciliation regarding a potential unfair dismissal claim. If the worker is alleging discrimination, they have three months from the date of the alleged discriminatory act or the last event in a series of discriminatory acts about which they are complaining to contact ACAS regarding their complaint. For wages claims, a worker will have three months (less one day) from the date that the wages were due to be paid to contact ACAS. If the employee has failed to get their claim in before the relevant deadline then the employment tribunal will have no jurisdiction to hear the claim.

Some legal protections only apply to employees – for instance claims of unfair dismissal and for a statutory redundancy payment. Generally speaking, an employee can only pursue an unfair dismissal complaint against their employer once they have at least two years’ service with that employer, although there are important exceptions to this rule.

Make sure you know whom exactly the employee is trying to sue. It may that you have been incorrectly identified as the employer liable for the claimant’s claim – for instance as a result of a transfer when the business was taken over. If the claimant was engaged outside of England and Wales and has no connection with the UK, it may be that the employment tribunals don’t have jurisdiction.

Usually, the claims will be clearly set out on the ET1 form, but there may be further allegations included within any additional information attached to the ET1. Your defence should respond to each specific complaint that is being made.

Should the case proceed to a hearing, witness evidence will be required from those involved in the events giving rise to the claim. To be ready for this, and to accurately draft the defence, take initial statements from relevant employees. This is particularly useful when the events leading to the claim will be fresh and clearer in everyone’s mind. You should also begin to collate any relevant documents and put together your version of events and chronology. The disclosure process will require all relevant evidence to be sent to the claimant. For this reason, managers and employees involved should be told to preserve documents.

ALL COMES CLEAR
Sometimes an ET1 form – and the claims – will be unclear. If the ET1 is vague, part incomplete or contradictory then an employer could consider serving the employee with a request for Further and Better Particulars of the Claim. This will allow for specific questions to be put to the employee regarding the unclear parts of their claim. However, it can also give the employee a second opportunity to get their claim into shape.

TAKE LEGAL ADVICE EARLY ON

Taking legal advice at an early stage will ensure that you understand fully the claims being made against you, the required steps needed to comply with the employment tribunal’s rules of procedure and to help form a response and strategy to defend the claim. Inaccurately completing the ET3 response form – or failing to address something – is likely to cause problems later in the process, and could have expensive consequences at the employment tribunal hearing.

CONSIDER SETTLEMENT
Settlement is always an option to consider – particularly if it appears that the employee has a good chance of a successful claim. Other factors to take into account when considering settlement will be the possibility of any adverse publicity, damage to reputation and the time and legal fees required to defend any claim. You can also consider contacting ACAS to help broker a deal.

Posted in CAT Know-How, Factor & Supplier News, Garage News, NewsComments (0)

Advertisement
  • What do connected cars have in store for the aftermarket?
  • Battery Store: What are suppliers planning this winter?
  • Suspension, spark plug and charger plants visited

more info

    • 'Electric vehicles will disrupt the aftermarket as we know it' Agree?

      View Results

      Loading ... Loading ...
    • Popular
    • Latest
    • Comments
    • Tags
    • Subscribe