Pannone HR Blog feed

Could we see an end to recruiters vetting candidates on Facebook?

2010-09-01 00:00:00

I was interested to read that the German Government are considering the introduction of a new law which would ban companies from using social networking sites such as Facebook to vet job applicants.

German interior minister Thomas de Maizire is quoted as saying: "Private social networks are private social networks and not gateways to gaining information on job applicants."

The trend amongst recruiters to vet (some would say snoop upon!) job applicants in this manner is not confined to Germany. Earlier this year we conducted our own survey and found that of those employers who admitted using social networking sites to vet potential candidates (17 per cent), one in three (33 per cent) said it had influenced their decision whether to offer/reject a job application.

Whether an employer should use social networking sites as part of the recruitment process is open to debate, however the biggest risk is potential discrimination claims from candidates on the grounds of sex, age, race etc. In practical terms, it is difficult for an unsuccessful candidate to prove that a prospective employer has viewed profiles on sites such as Facebook. Theoretically, if a rejected candidate discovers that this is the case, then the employer may be at risk of a discrimination claim if it could be construed that some bias on unlawful grounds may have taken place - for example, because a Facebook page discloses that the applicant is gay.

To minimise the risk, employers should keep records of their non-discriminatory reasons for rejecting candidates e.g. lack of relevant qualifications. However, the risk to employers is very small, and those who currently find it useful to double check the suitability of candidates by looking at social networking sites might feel that the benefit of doing so outweighs any risk. In fact, relatively few people now place personal details on openly accessible pages anyway.

Do you use social networking sites to vet job applicants? If so, has it altered your decision whether or not to offer a candidate the role?

Could we see an end to recruiters vetting candidates on Facebook?

2010-09-01 00:00:00

I was interested to read that the German Government are considering the introduction of a new law which would ban companies from using social networking sites such as Facebook to vet job applicants.

German interior minister Thomas de Maizire is quoted as saying: "Private social networks are private social networks and not gateways to gaining information on job applicants."

Do you use social networking sites to vet job applicants? If so, has it altered your decision whether or not to offer a candidate the role?

Tribunals Service: Satisfactory?

2010-08-03 00:00:00

Following the announcement of the Tribunals Service that there has been a staggering increase in tribunal claims, 56% to be precise, the Employment Lawyers Association (ELA) has announced the results of its own survey which related to the experience of representatives (both claimant and respondent) in the employment tribunals.

The survey which sought to canvass opinion on suggestions for reform of the system, revealed a substantial level of dissatisfaction with the current performance of employment tribunals. This may not be entirely surprising given the increase in the volume of claims; however it may be a prime opportunity for review and reform of the process to enable tribunals to deal with these high volumes.

One key theme which emerged was concern about the lack of consistency among tribunals with 83% of those asked stating that tribunals did not adopt a consistent approach to practice and procedure. 75% indicated they believed tribunal judges were not being consistent in their judicial approach to handling cases. Overall, 31% indicated that they were dissatisfied with the service they had received.

Several problem areas were raised including short notice postponements of substantive hearings, delays in listing procedural hearings and cases going part heard due to lack of judicial time. Only half of those asked were satisfied with the tribunals approach to costs applications and 68% said that vexatious litigants needed to be dealt with more effectively. Other suggestions included large equal pay claims to be handled by a single employment tribunal, judges sitting alone on cases such as unfair dismissals and out of hours hearings. With regards witness statement only 27% fully supported taking witness statements as read and 42% were strongly opposed to imposing a time limit on a witness reading their statement.

Whilst some of the above suggestions appear more practical than others, it is hoped that the tribunals service will take on board some of the concerns and suggestions made in this survey and seek to amend its process.

What is your experience of using the Employment Tribunal?

Taxation of Termination Payments

2010-08-02 00:00:00

A recent decision of the Employment Appeal Tribunal has held that awards of personal injury and injury to feelings relating to a tortious act (such as a failure to make reasonable adjustments in a disability discrimination claim) that pre-dates the termination of employment are not taxable and, consequently, should not be subject to 'grossing up'. This case did not change the existing law, but the correct approach to tax and grossing up, both on termination payments and on tribunal awards, is an area that often causes confusion for employment lawyers.

As a general rule, contractual payments made to an employee are subject to employment income tax in the normal way. The first 30,000 of a non-contractual payment made as a result of termination and redundancy may be tax-free in certain circumstances e.g compensation for unfair dismissal or discrimination. When making an award for financial loss the tribunal will assess the amount due to the claimant, then gross up that amount to take account of any tax that will be payable. The claimant will therefore be awarded the grossed up amount, but receive the appropriate amount after tax has been paid.

The case considered whether the awards for injury to feelings and personal injury (together with interest) were received "on account of" an injury or disability and were directly or indirectly in consequence of or in connection with the termination of employment. It was argued that such awards were taxable on the basis that they were not made "on account of" her disability: the motive for payment was not her disability but the tribunal order. The EAT held that whether the exemption applied was academic, as the awards for personal injury and injury to feelings related to the employers failure to make reasonable adjustments prior to the employees resignation. Therefore, these elements (and the related interest) were not taxable and should not be grossed up.

With regards pension loss the EAT stated that the exemption is concerned with payments to a beneficiary out of a pension scheme (for example, the tax free lump sum paid to pensioners on retirement), not a tribunal award of compensation in respect of loss of pension rights on termination of employment. Therefore, the pension loss award was taxable and it was correct to gross up this payment. The EAT also held that the tribunal should have grossed up on the basis of the marginal rate in that year rather than the higher rate of 40%.

In accordance with this decision the correct approach is to analyse the tribunal's award or the settlement agreement to ascertain the nature of the payment.

Past your Hey day? - Default Retirement Age to be Scrapped

2010-07-29 00:00:00

The government has today launched a consultation process into its proposals to scrap the default retirement age in the UK. Currently, under Labours Employment Equality (Age) Regulations 2006, employers can force staff to retire at the age of 65 without paying any financial compensation.

The new proposals would make unlawful the dismissal of employees on the grounds that they have reached the age of 65. Older members of staff could only be dismissed lawfully on the same grounds that would apply for any younger employee.

Rising life expectancies mean that many people no longer believe that someones age is a reliable indicator of their workplace contribution. As such, many activists have welcomed the proposal as a victory against ageism. The BBC reports that Rachel Krys, campaign director of the Employers Forum on Age, believes the law will finally reflect the fact that it is fundamentally discriminatory to force someone to retire just because they reach 65.

The government plans to move quickly to end the discrimination, with forced retirement due to be phased out from next April before becoming unlawful on 1st October 2011. The changes may bring employment practices in line with social reality, but what are the implications for employers?

The proposals raise a multitude of employment law, business and HR questions. The Confederation of British Industry has expressed concerns that scrapping the default retirement age could create uncertainty and make workforce planning extremely difficult. The speed of the proposed change will leave businesses with little time to prepare.

The default retirement age has already been subject to legal challenge. In R (on the Application of Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (the Heyday case) the High Court held that the designated retirement age of 65 is not contrary to the Equal Treatment Framework Directive. The judge concluded that the regulations could be justified on social policy grounds and that adopting a designated retirement age was not a disproportionate means of achieving the governments policy aims. The court accepted that the issue of whether setting the default retirement age at 65 was disproportionate was a difficult one. In particular, the judge commented that:

"It creates greater discriminatory effect than is necessary on a class of people who both are able to and want to continue in their employment. A higher age would not have any detrimental labour market consequences or block access to high level jobs by future generations. If the selection of age 65 is not necessary it cannot therefore be justified".

However, taking into account the "margin of discretion" afforded to the government when implementing Directives, setting the retirement age at 65 was not considered to be unlawful. The judge indicated that the position will have to change after the forthcoming consultation to avoid further legal challenge.

The key question is should the government raise the default retirement age, or simply do away with the concept of a default retirement age altogether?

Christina McGoldrick

Disability Discrimination

2010-07-23 00:00:00

A former contestant on the TV show "Britain's Got Talent" is suing Simon Cowell and his production company under the Disability Discrimination Act in the Central London Employment Tribunal.

Ms Czikai appeared on the show as a singer and claims she was ridiculed and degraded by the judges. She claims that the show failed to take account of her medical condition which affects the environment she is able to perform in, including her ability to hear her own singing.

Ms Czikai is claiming 2.5 million for injured feelings and loss of earnings. What initially seems very odd about this case is that it has been brought in the Employment Tribunal. Ms Czikai signed a contract to appear on the show, but was she an "employee" of Simon Cowell or the production company and therefore entitled to protection under the Disability Discrimination Act? Can the Employment Tribunal hear the claim?

It appears Ms Czikai is arguing that the TV show audition process is essentially an "interview" to determine who should be offered "employment", being a contract with a recording company. This is certainly an interesting argument. The Disability Discrimination Act makes it clear that is unlawful to discriminate against disabled job applicants as well as disabled people already in employment.

"Employment" for these purposes means employment under a contract of service or a contract personally to do any work.

It is unlawful for an employer to discriminate against a disabled person in the arrangements it makes for the purposes of determining who should be offered employment.

There is a duty to make reasonable adjustments where the working arrangements or physical features of an employer's premises place a disabled person at a substantial disadvantage compared to non disabled people.

It remains to be seen whether the scope of the Act covers someone in Ms Czikai's position. If it can, there is clearly huge potential for similar types of claims to be brought.

A pre hearing review was held in the Tribunal this week to determine whether the Tribunal has jurisdiction to hear her claim, and a decision is awaited.

What cost tribunal claims?

2010-07-22 00:00:00

Employers often complain that the employment tribunal system is biased towards claimants, and particularly towards claimants who are not legally represented. A recent case before the Employment Appeal Tribunal suggests that this is not necessarily the case. The case involved a claimant who worked for a kilt hire business on the Royal Mile in Edinburgh and who had defrauded his employer by running his own business from the companys premises and passing it off as the companys business. The employment tribunal who heard the case found that the claimant had been unfairly dismissed because his employer had not followed the correct procedures, but the claimant received no compensation. The employer also applied for costs but the tribunal refused this application. The tribunal commented that had the Claimant been legally represented he might have been told that he risked obtaining no money but as it was, the Claimant had plainly expected to receive compensation. The tribunal also stated that claimants are, in any event, entitled to seek simple findings of unfair dismissal without the objective of obtaining money.

The EAT overturned this decision and ordered that the claimant should pay costs to the respondent. Noting that the claimant must have known that he was misrepresenting the circumstances which led to his dismissal and had effectively lied to the tribunal, the EAT held that where a claimant had been dishonest in relation to his or her claim, a tribunal was entitled to conclude that this was unreasonable conduct and so make a costs award. The EAT also held that it was not reasonable for a claimant to bring a claim simply to obtain a finding of unfair dismissal. Claimants have to seek either compensation, reinstatement or re-engagement those are the only three options open to a claimant on the claim form.

On the face of it, this is actually quite a tough decision for employees (for a change I hear you say). There are a number of reasons why an employee might want to obtain a simple finding of unfair dismissal to clear their name so that they can find alternative work, or in order to challenge a referral to a professional body for example. I cant help thinking that in spite of this judgment, a claimant who can demonstrate a valid reason for pursuing a claim for the sole or primary purpose of getting a finding of unfair dismissal is unlikely to be hit with a costs order. On the bright side, what it does mean is that employers are in a stronger position to seek their costs where an employee has pursued a claim in any way dishonestly or where there is no good reason to pursue the claim.

Employment Law and HR/Personnel Blogs

2010-07-20 00:00:00

For those of you who enjoy our blog and have an interest in HR and employment law related topics and news, Karen Michelle Credie also has a useful blog. If you would like to take a look, here's the link: http://hrconsultantlancashire.blogspot.com/.

Karen is an HR consultant with many years of HR experience and provides HR support and advice to businesses throughout the North West region.

Civil Service Redundancy Payments to be Capped

2010-07-19 00:00:00

An announcement has recently been made by the Cabinet Office minister, Francis Maude, of the Government's plans to introduce new legislation to cap redundancy pay for civil servants.

Under the new legislation, compulsory redundancy payments will be capped at 12 months' pay and voluntary redundancies at 15 months' pay. Current redundancy entitlements within the civil service give outgoing redundant employees up to an astonishing six years' worth of pay. This far surpasses the benefits available to the masses under the statutory scheme and also the vast majority of enhanced redundancy schemes in the private sector. It was described by Maude as "untenable".

The new legislation will override previous case law in which the unions successfully challenged the Labour Government's previous attempt to limit civil service benefits. It is said that the new measures are to be introduced "as soon as possible".

The move to introduce the new legislation sends a strong message that the new Government is committed to the spending cuts it has promised and is not afraid to tackle opposition and difficult and sensitive issues head on. Unions have apparently threatened to strike over the proposed legislation, but any such action is likely to be met with an equally strong response.

It seems that the Government is prepared to take serious action to address some of those differences - not least where the cost to the public purse of inaction would be great. The cynical will now anticipate a wave of public sector redundancies following implementation of the new legislation.

Social Media: An Employment Hazard?

2010-07-14 00:00:00

In recent times we have seen the rapid growth of social media, from websites like MySpace and Facebook to LinkedIn and Twitter. From an employment perspective, some employers will ban access to such sites entirely, whilst others will encourage it, each for their own reasons. Facebook users were in fact described by the Trades Union Congress as HR Accidents waiting to happen, and it is becoming increasingly common for employees to be disciplined and/or dismissed for comments and entries on these websites.

Disciplinaries and dismissals in this area have usually concerned employee productivity dropping as a result of access to such websites during working hours or inappropriate comments made by employees relating to their employer and/or employment conditions. However there are also risks for employers.

The key risks for an employer relate to discrimination, confidentiality and breach of data protection laws. An employer could be held vicariously liable for discrimination by their employees where comments are made about another employee online. This appears to be the case whether or not the employee making the comments did so in their own time and using their own equipment. There is also the danger of employees posting confidential information online, such as, client names or business contacts. And in terms of data protection, employers accessing sensitive personal data such as information about an employee's sexuality or beliefs from such websites could be in breach of the requirement for fair and lawful processing which requires employees to be told when and how online information will be viewed. Employers should also be aware that using information found on social networking websites as reasons for not recruiting individuals could lead to claims by unsuccessful applicants.

There may be benefits to allowing access or even encouraging access to these websites. Benefits reported include increased unity between employees or increasing networking opportunities, thereby providing business opportunities, but employers need to take steps to address the potential issues that their usage may cause.

Such steps would include drafting and circulating appropriate policies, setting out clear parameters about permitted use, and the consequences of breaching such policies; drafting contracts of employment which include specific provisions about confidential information on social media; when recruiting, inform candidates of the vetting and verification exercises to be carried out and allow them the opportunity to comment on the information obtained