MAY 2019 EMPLOYMENT LAW
CALLING ALL
READERS
We want to hear your employment
law issues. Send us your dilemmas to
feature here next month.
Email: chris.beck@markallengroup.com
Key to this case is your
responsibility to take reasonable
steps to protect the health and
safety of your employees at
work, as set out in the Health
and Safety at Work Act of 1974.
Failing to do so could ultimately
allow members of staff to
resign under the grounds of
constructive dismissal, with
employees arguing that they
have been forced to resign due
to not being provided with a
safe working environment.
With this in mind, an essential
fi rst step is to involve the police.
This will allow them to take
action against the perpetrators,
who have not only verbally
abused employees, but have also
broken the law by committing
assault. They may also be able to
provide staff with reassurance by
maintaining a presence during
busy times and can advise on
whether it’s possible to apply
for an injunction, for example,
requiring protestors to remain
a certain distance from the
factory. As this is an evidential
matter and in order to assist the
police in their enquiries, you
should review any CCTV footage
gathered since the problem
began. If this technology is not
already in place, you may wish
to consider getting it installed in
case of future incidents.
You should also give thought
to any other practical steps
that could be taken to protect
staff travelling to and from
work. For example, could a
minibus or private security
escort be provided to bring
them through the protestors?
Could start and fi nish times be
adjusted temporarily, allowing
employees to avoid protestors
at problem times, or are there
any alternative entrances that
workers could use to gain access
to the factory?
It’s worth bearing in mind
that employees with genuine
concerns for their safety may
simply refuse to turn up at work.
However, as long as you are
confi dent that you are taking
reasonable steps to protect
them, you should advise these
employees that absence could
be considered unauthorised –
and potentially unpaid.
Engaging closely with
employees throughout the
process to let them know exactly
what is happening, and the steps
the business is taking to protect
them, is essential to keeping
them reassured and minimising
any day-to-day impact.
In addition, while not strictly
an employment law issue,
reviewing the company’s PR
approach around the issue of
animal welfare may help to
improve its reputation in this
area, reducing the likelihood of
similar incidents occurring again.
A long-serving member of
our sales team left two
years ago and has subsequently
resurfaced at a competitor. He
had been with us for his entire
career, and over time has built
up a substantial list of contacts
within the industry, many of
whom he’s connected to on
LinkedIn. We’re convinced
he’s using these relationships
to do business at his new
Know your law...
The Health &
Safety at Work
Act 1974 dictates
that employers have a duty of
care to their employees, as well as
everyone else on the premises. The
law only extends to cover measures
that are ‘reasonably practicable’.
fi rm, taking it away from
us. While they’re his
relationships, they led to
contracts for us. Who ‘owns’
LinkedIn contacts, and is
there any way of stopping
people using them once
they move on?
As there has been a very
limited number of cases
relating to the ownership
of LinkedIn contacts, the
court’s position on this is still
unclear, and cases brought
by organisations can result
in disputes around privacy.
Firstly, it’s important to
note the signifi cant amount
of time that has passed
since the employee left your
organisation. The courts
are often reluctant to take
action that goes against
public policy by depriving
individuals from earning
a livelihood. As such, they
may take the stance that
attempting to restrict the
former employee’s usage of
LinkedIn contacts now is akin
to ‘shutting the stable door
after the horse has bolted’.
Almost two years on, they
may feel that your business
should not be relying on
social media connections as
the sole method of protecting
business relationships, and
that you have had suffi cient
time to secure these through
other means.
The issue of proof, and
the diffi culty of securing
evidence, complicates
matters further. Can your
business prove that the
former employee’s new
business resulted from a
LinkedIn contact specifi cally?
The outcome in this case may
also depend on whether your
business requires employees
to have a personal LinkedIn
account, and if so, whether
this requirement is clearly
set out in the organisation’s
policy, or contractual terms.
If such a written requirement
exists, does it explicitly
spell out which party has
ownership of any contacts
made during the employee’s
time at the business?
If you have a formal social
media policy, you should also
check back to see whether
this requires employees to
delete any contacts made
during their employment.
To ensure the workforce
is completely clear about
all areas of the policy in
future, this should also be
included in key employment
documents, such as
termination agreements,
letters of dismissal and
contracts of employment.
Another area to consider
is whether the individual’s
employment contract
contains any restrictive
covenants, and whether these
include specifi c provisions
around the ownership of
LinkedIn contacts. Even
if these are in place, in
order to be enforceable,
these covenants cannot be
indefi nite and must cover a
reasonable time period.
Making use of gardening
leave provisions, which
involve removing employees
from the workplace during
their notice period and whilst
still on the payroll, can also
help to prevent members of
staff from taking potentially
sensitive information with
them, which they may
eventually use against you
as a competitor.
Facts:
40%
of people have over
1,000 connections
on LinkedIn
Source: LinkedIn
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