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That’s Life (as a trainee employment lawyer)

September 1, 2023

As Frank Sinatra famously sang – “and now the end is here, and so I face the final curtain…” – he then went on to recount his time as an employment law trainee as he prepared to move on to the next stage in his traineeship… right?

Perhaps my past 6 months training in employment law will not have the same lasting impact on the world as “Ol’ Blue Eyes” in his prime (you never know though) but I’ve certainly got some guidance to give. So Come Fly with Me as I dish out a few tips for employers following my time in the Blackadders employment team.

Nail the basics

Starting off easy, basic areas can cause employers significant issues if they are not carried out correctly.

Details such as getting employment contracts signed, ending probation periods correctly and paying employees the correct wages (including National Minimum Wage) are all simple areas which see employers caught out all too often.

Issues in these areas are the easiest to avoid so make sure you do so.

(Social Media Is) The Tender Trap

Spoiler alert, social media is not going anywhere and issues regarding its use are becoming ever more present with more and more legal attention being shown towards it as the basis of an unfair dismissal claim.

Although Employment Tribunals have recognised that social media posts can be an issue of misconduct and accordingly a potentially fair reason for dismissal, this is not a foregone conclusion.

In assessing whether behaviour on social media can be a fair reason for dismissal, the tribunal has typically placed great weight on whether said behaviour has caused, or is likely to cause, reputational damage to the employer. They will look at the conduct of the parties in respect of whether the post was intended to cause offence as well as whether the employee showed remorse in the aftermath.

Perhaps the most important factor considered by the tribunal is whether the employer has a clear social media policy identifying the do’s and don’ts for employees in respect of its use and relationship with work.

It’s probably time to implement/update your social media policy before someone says Somethin’ Stupid…

Effective Investigations

Sticking with unfair dismissal, The Way You Look (into issues of misconduct) Tonight can be vital in whether a claim for unfair dismissal is upheld or not.

As you’ll have read in many of our other blogs, the essential questions for the tribunal to asses are whether the employer had a reasonable belief that there had been misconduct, whether there were reasonable grounds to maintain that belief and whether there had been adequate investigations into the circumstances surrounding the misconduct.

In addition, a failure to comply with the ACAS Code which provides that “It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case”, can see the award in unfair dismissal cases uplifted by 25%.

In carrying out investigations, employers should remember that the investigation is a fact-finding exercise – the investigator should carry out their role with an open mind and not mandate themselves to establish guilt. Likewise, employers should not be too quick to suspend as it may not always be appropriate.

There is no exact science as to how much investigation should take place but it is certainly an area that you’ll want to take legal advice on.

Rolled up Holiday pay

To be “Frank” with you, rolled up holiday pay remains unlawful. Despite this, many employers still prefer to do so, spreading holiday pay over the year through an added payment on top of wages.

Although it seems likely that rolled up holiday pay may soon be making a comeback, in the meantime, there are several risks employers should be aware of including:

  • Potential double payments for workers arguing that they were deterred from taking their holidays.
  • Incorrect calculations may lead to workers getting less than they are due which may result in a claim for unlawful deduction of wages.
  • Grievances may be raised by employers who believe they are being paid their holiday pay incorrectly – prepare for a busy HR team.

Overall, whilst rolled up holiday pay remains unlawful it is better practice to avoid doing so until you can be assured that the risks are minimal.

Keep educated and updated

Throughout university I was regularly told that law changes all the time – employment law is often the clearest example of this.

To avoid falling behind, employers should seek to take advantage of the resources available to them before seeking legal advice. Blogs, Q&A Sessions and a certain employment law podcast are all effective (and free) ways in which an employer can keep themselves up-to-date with changes to the law.

Outside of these resources, the ACAS Code is available for free online and provides employers with much of the guidance they may require to minimise risk.

If you need any advice regarding any area of employment law, please get in touch with Blackadders’ Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow and across Scotland.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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