Managing Political Speech In The Workplace

In the current political environment, employers and employees alike may be wondering – what, if any, political conversation in the workplace is acceptable or appropriate?  Tones of “freedom of speech,” “freedom of association,” on one hand, intersect with tenors of “workplace harassment” or simple annoyance, on the other.  Although like the political debates themselves, the rules governing politics in the workplace are not entirely black and white, here are some important guidelines.

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Unclear and present danger – incorrect use of “Independent Contractor” arrangements may have expensive consequences

The ever-vexed question of whether a worker is an employee or independent contractor has once again come before the Australian courts. The recent decision of Balemian v Mobilia Manufacturing Pty Ltd & Anor provides a reminder to employers of the potential financial ramifications of getting this wrong.

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Webinar: New Laws in Germany Regarding Agency Workers and Freelancers − What Employers Need to Know

Squire Patton Boggs presents a webinar to discuss the recently-introduced significant reform to the laws governing the leasing (temporary hire) of personnel in Germany, which significantly affects businesses working not only with agency workers, but freelancers as well. We will provide practical advice on how to deal with this new legislation and explain what companies should be aware of now as well as the steps they need to take.

On 14 June 2017 at 4.00 p.m. BST (UK) (5.00 p.m. CEST, 11.00 a.m. EDT, 8.00 a.m. PDT) Martin Falke and Laura Sparschuh will also discuss what is coming up in the legislation pipeline, including a new law relating to the transparency of remuneration, which is likely to come into effect later in 2017.

In addition, they will cover:

  • Recent Labour Court judgments that may have an impact on your day-to-day business
  • Best practice on granting stock/stock options of overseas parent companies

The webinar will be a 50-minute presentation in English, followed by a 10-minute online question and answer session.

Intended to help you manage labour and employment law risk across your international operations, the webinar will be of interest to both HR professionals and in-house counsel.

This webinar is part of our 2017 series focusing on key labour and employment issues in countries throughout Europe, the Middle East, Asia Pacific and the US.

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Politics is not the art of the possible. It consists in choosing between the disastrous and the unpalatable”. Main parties’ employment manifestos reviewed

General Elections. Don’t they seem to come round more frequently than they used to? A tough call for voters, this particular one, not just because of economist JK Galbraith’s wise words above but also because the outcome won’t make the slightest difference to the biggest issue of the day, the terms on which we are allowed by the rest of the EU to come out of Europe.

So what does the committed voter get to choose between? From the high-level employment perspective, all the main manifesto documents look broadly the same – more rights and protections for workers and the equally laudable, but obviously entirely incompatible, less red tape for businesses. They agree, sometimes violently, in relation to the importance of filling skills gaps, increasing apprenticeships, payment of at least the minimum living wage, preservation of existing EU-derived employment laws and curbs on zero hours contracts. But as we know, election manifestos are much like new Thameslink timetables – launched with great fanfare but no real expectation on users’ part that any of it will actually be true. So before the nation pulls the duvet over its collective head on 8 June, let us take a brief look at the main parties’ employment manifestos to see if we can separate the disingenuous from the delusional from the outright dishonest.

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NLRB Rules That Barring A Former Hotel Employee Who Sued Her Employer From The Premises Is An Unfair Labor Practice

On May 16, 2017, a two-member majority (Members McFerran and Pearce) of the National Labor Relations Board held that it was an unfair labor practice for the Grand Sierra Resort &Casino (GSR) to bar a former employee from its premises after she filed a class and collective action lawsuit against the employer. Continue Reading

Good news for employers facing holiday pay claims

Rumbling around at the less well-publicised end of the holiday pay saga is the question of just how far back such claims can go.  Changes to the Employment Rights Act 1996 limited this to two years for claims brought after 1 July 2015, but thanks to Bear Scotland Limited, the actual exposure may be very much less. Bear is a case where the outcome is far more interesting than the facts, so put briefly, it goes like this:

  1. Underpaying holidays, in particular through the exclusion from the calculation of something which ought to be in it (e.g. overtime or commission earnings) is an unlawful deduction from wages.
  2. Under Section 23 ERA, any claim to the Employment Tribunal for unlawful deductions must be made within 3 months of the deduction or of the last of a series of deductions;
  3. “Series” requires a chain of underpayments to be linked by both time and cause. If they are for different reasons or too far apart, they will no longer count as a series and so any of them falling more than three months before the referral to Acas will be out of time and (subject to a “not reasonably practicable” discretion on the part of the Tribunal), not recoverable;
  4. “Too far apart” for these purposes was determined in the original version of Bear Scotland as anything over three months. Following a hearing in December last year, this has just been upheld by the Employment Appeal Tribunal in that same case.

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Industrial Commission of Arizona Issues Long-Awaited Proposed Rulemaking Regarding Arizona’s Paid Sick Leave Statute

We previously reported that all Arizona employers will be required to make paid sick leave available to their employees beginning on July 1, 2017. The law requires that businesses with 14 or fewer employees provide at least 24 hours of leave annually, and businesses with 15 or more employees provide at least 40 hours of leave annually, to employees to treat their their own illness or obtain preventive care, to care for a family member who is ill or needs preventive care, for certain circumstances associated with sexual or domestic violence, and for business closures precipitated by outbreaks or threatened outbreaks of communicable disease.

On May 10, 2017, over six months after the election, the Industrial Commission submitted a Notice of Proposed Rulemaking to the Arizona Secretary of State. The proposed rules answer a few open questions commonly held by Arizona employers, leave many other questions unanswered, and raise some new issues. We have prepared an alert for Arizona employers detailing their obligations under the Arizona statute, addressing the questions answered in part by the new proposed rules, and explaining what steps employers can take if they wish to submit further comment before the rules are finally adopted on June 5, 2017.

In the post – FWC delivers mixed messages on dismissal for social media indiscretions

Following recent differing decisions of the Fair Work Commission (FWC) it seems that Australian employers must still tread a fine and uncertain line in determining whether employee misconduct on social media is a valid reason for dismissal.

In the recent case of Stephen Campbell v Qube Ports Pty Ltd t/a Qube Ports & Bulk in March 2017, the FWC considered the conduct of a veteran employee who publicly disrespected his employer’s management on social media. Mr Campbell had been investigated for misconduct after damaging company property, failing to report the damage and lying when questioned about it. Taking serious umbrage at these allegations Campbell took to social media to label the Chairman a “pig” in a post that also stuck the boot into the employer’s management and policies on a more general level.

While the employee’s social media conduct was not the reason given for his dismissal (that was the other issues alleged) the FWC noted that this type of conduct was “unacceptable” and suggested this conduct would have been enough to warrant Campbell’s dismissal too.

In other recent decisions however, the FWC has found that conduct on social media did not warrant dismissal. These included thinly-veiled criticisms and disparaging comments made by a teacher in a social media post to friends and colleagues in Mary-Jane Anders v The Hutchins School last year: “…We teach to have confidence in our abilities; do not allow others to put you down…the discrimination you receive is totally debilitating”. While the post itself was not referred to in the School’s letters of allegation leading to dismissal (its having already been the subject of a warning), the FWC found it was relevant to Ms Anders’ behaviour, which included failing to treat her colleagues respectfully and disloyal behaviour. The FWC found the comments gave rise to the possibility of the School being exposed to ridicule and causing distress to those employees targeted, but found they showed no more than a lack of judgement on her part.

In the case of Michael Renton v Bendigo Health Care Group five months ago, a nurse who “tagged” work colleagues in sexually explicit videos on social media and called his supervisor a “red-headed c**t” in personal messages to a fellow employee was found to have been unfairly dismissed. The nurse’s termination was deemed by Commissioner Bissett to be “disproportionate to the gravity of the misconduct”. The conduct was said to be boorish, offensive and distressing to his work colleagues. However, the Commissioner was careful to note that the question to be considered was not whether the employee engaged in serious misconduct, but whether the dismissal was harsh, unjust or unreasonable.  Although the ‘pranks’ could justifiably be considered serious misconduct, the “one-off” nature of the event did not justify a decision to terminate. The conduct was said to have deserved a swift and strong response from the employer and the employee should have apologised unequivocally, but the termination was nonetheless harsh in the circumstances. In our view, Mr Renton can consider himself more than a little fortunate here – another Commissioner could well have reached the opposite conclusion. The case is certainly not authority for the proposition that you can say pretty much whatever you want about your management online so long as you only do so once, or that a failure to apologise is irrelevant to whether termination is justified.

Lessons for employers

What constitutes social media conduct worthy of dismissal therefore remains ambiguous at the margins. Employers should have a clear and comprehensive social media policy which provides examples of unacceptable conduct, and provide training on that policy, so that all employees are aware of the employer’s expectations on acceptable conduct and when disciplinary action may be taken (including up to termination of employment). They can then more readily seek to rely on a policy breach to support disciplinary action (including dismissal) for misconduct on social media.

But do be aware that although such a policy is persuasive it is not determinative, the FWC retaining an overriding discretion to deem conduct insufficiently offensive to warrant dismissal even if your policy says otherwise. Aside from the words themselves, context will also be important – how public was the post, what harm does it do, is it aimed at a live and sensitive individual or an inanimate corporate, was there some background disagreement or provocation or was the criticism implicit in the role (e.g. a union officer inciting strike action), was there a prompt retraction/apology etc.

Mental health in recruitment

According to ACAS, “at least one in four of us will suffer from a mental health problem at some point in our lives”. A scary statistic, but scarier still is the prospect that this creates an annual cost for UK employers of £30 billion from both absences and “presenteeism” (i.e. turning up for work when you are not well enough). That amounts to a total of 91 million days lost every year from mental health problems alone, which have now overtaken all physical ailments as the principal cause of workplace absence in the UK.

This may lead some employers to think twice about hiring an applicant who has declared a serious mental health issue during the recruitment process. However, for many reasons it is important for employers not to fall into this trap. The Equality Act 2010 covers job applicants as well as employees, so rejecting candidates purely on the basis of their mental health issues may well amount to disability discrimination.

Below we have set out some tips for employers dealing with applicants who may have mental health issues at each stage in the recruitment process.

  • Job specification / job description – It is important that these are made clear from the outset as this will form the foundation from which your selection criteria can be created. You should ensure that these do not include any unnecessary requirements that might unjustifiably exclude people with mental health issues. Ensure that you focus on what needs to be achieved rather than how the task should be done.
  • Application form – Should you include a question about mental health on the application form? This is somewhat of a double-edged sword. Failure to ask about a mental health disability may make you liable for a failure to make reasonable adjustments if you “should have known” about the disability. However, at the same time, employers no longer have free rein to ask questions about disability at the pre-employment stage unless it is for one of the following main reasons:
    • establishing whether the applicant will be able to perform a function that is intrinsic to the job;
    • monitoring diversity; or
    • promoting positive action.

This makes it more difficult to know for sure whether a particular candidate has a disability or not. Although you would not automatically be discriminating by just asking the question, if the application is rejected and he/she brings a claim for disability discrimination, the burden of proof would shift to you as employer to show that the reason for the rejection was not discriminatory.

  • Assessment – Where you use assessment processes, ensure that they test only relevant skills and that the form of test you use will not cause particular difficulties to those with mental health condition http://www.employmentlawworldview.com/testing-times-for-employers-in-recruitment-assessments/.
  • Selection – If you know or have reasonable grounds for knowing that an applicant has a mental disability, you should consider whether there are any reasonable adjustments that could be made to allow them to be considered for the job, e.g. flexible working hours, part-time work, job share, etc. Otherwise, refusing to shortlist them for interview may constitute a failure to make reasonable adjustments. If you do not undergo a proper selection process by gathering sufficient information, or if the outcome appears to be a foregone conclusion, you may face a claim of discrimination from the applicant. It is therefore very important that you plan the interview stage in advance, giving applicants the chance to mention any disabilities and to suggest adjustments which might help them overcome the effects of their problem. Very few of us know enough about mental health issues to have anything more than a knee-jerk reaction to them. That is not a good basis on which to make selection decisions.

Remember that the important factors to consider when deciding if an applicant is suitable for the job are: (i) the ability of individual to do the job; ii) whether any reasonable adjustment can be made; and (iii) whether (ii) would have any bearing on (i). Anything else is secondary.

  • Medical checks – You may make employment subject to the applicant undergoing a satisfactory medical examination or assessment. However, if you do this, you must make sure that this applies to all candidates and not only those who are disabled. Limiting this to physically or mentally disabled candidates alone would almost certainly create an inference of discrimination.

As you will note from the above, mental health issues should always be handled delicately. However, provided you carry out a fair and proper recruitment process, you won’t go far wrong!

Improving support in the workplace for employees with mental health issues

This post was prepared with the kind assistance of Andy Bell, Deputy Chief Executive of the Centre for Mental Health, a charity dedicated to changing the lives of people with mental health problems by improving support and bringing about fairer policies. https://www.centreformentalhealth.org.uk/.

Many employers have experience of dealing with prolonged, costly and challenging sickness absences of employees with mental health issues. While inevitably there will be situations in which sickness absence is medically necessary or the most appropriate solution, very often it may at the same time increase the employee’s feelings of isolation and so exacerbate the problem.  The longer an employee is absent from the business the more difficult it becomes for them to return to work (statistics show a sharp drop in the rate of successful returns after 6 weeks’ absence) and if a “new normal” has established itself in the interim, the less their colleagues may want them to return.  Supporting an individual within the workplace may mean that they do not see absence as their only option, in turn potentially making a huge difference to that person’s career and saving the business the time and expense of dealing with a protracted sickness absence.

How can businesses and HR teams improve the support offered to employees with mental health issues such that less time off is required?

Foster an open culture

  • Encourage an environment where mental health is spoken about openly. Otherwise employees may feel they cannot raise concerns about their mental health and so suffer in silence while their condition deteriorates, and they potentially become less productive and more difficult to work with. For example, if someone in a senior role has experience of mental health issues, ask if they would be happy to share their experiences.
  • Mental health difficulties in the workplace are often assumed to be ‘work-related stress’. While the workplace can be stressful, mental health issues are frequently not work-related at all. In many cases the issues are in the individual’s personal life and the state of their working life can then either help or hinder existing problems.

Don’t be afraid to act

  • The natural fear of doing the wrong thing when dealing with employees with mental health issues can often paralyse colleagues, managers and organisations into not addressing issues with an employee who is clearly struggling with their mental health. Doing nothing is not only unhelpful for the employee but can often lead to the breakdown of relationships and prolonged and difficult absences. These situations can easily turn sour. A Tribunal claim will be stressful both for the individual and the managers who have to deal with it, and can be expensive for the business. Acting quickly and sensitively may avert many later problems.
  • Encourage colleagues to do what they would do if someone had a physical illness. Treat mental health just as health; applying common sense and compassion will always be a good guide. If an employee does go off sick, stay in touch in a sensitive manner. Send them a “Get well” card in the same way that you would if they were off with back pain or a broken leg for example. Treating the illness as something that has happened to that individual which does not change them or imply any weakness or innate vulnerability, like flu or a kidney stone, will encourage the belief that they can recover and that their colleagues are looking forward to their return.

Equip line managers with the resources to support employees

  • Colleagues and managers who are supportive can make the difference between an individual needing to take time off work or not. Have the individual’s colleagues noticed that he or she is behaving differently? Have they become quieter, more aggressive? Are they no longer meeting deadlines or struggling with their usual duties? A simple initial friendly approach by a line manager (“How are things going?” or “Anything I can help you with?”), just a smile in what may seem a hostile world, may mean that the individual does not feel the need to go off sick or returns more quickly from sickness absence.
  • Provide training on how to spot potential mental health issues and make sure managers know what support is available so they can refer employees to sources of help: employee assistance programmes; a visit to their GP; details of NHS organisations or charities which can provide support. Line managers should not be expected to become doctors or counsellors but it will help if they can point an employee in the direction of appropriate assistance if they are struggling.

Alternatives to long absence

If the employee is disabled then the employer will have a duty to make reasonable adjustments. When dealing with any employee with mental health issues, be flexible with adjustments that could be made to assist them to remain at work or return to work as early as they can.  For example, if the employee finds their commute particularly stressful, then perhaps they could be allowed for a period to work from home or start later in the day to avoid travelling during rush hour.  If the employee has caring responsibilities which they are finding stressful, then perhaps a reduction of hours or part-time work would assist them.

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