Employment Law News

Netflix (US internet provider of on-demand TV and film) has experienced phenomenal growth over the last decade but despite this expansion it has continued to operate the sort of ‘trust’ approach to employees that it did when it was a small start-up. It pretty much cuts out the use of HR and runs an honour system with regard to holiday and expenses. Employees are told to take whatever time off they feel is appropriate and to work it out between themselves provided that core cover is there. Senior staff are told they must take holiday because they act as role models for junior employee. With regard to travel and expenses, staff are told to act in Netflix’s best interests when making arrangements and choosing restaurants.

Essentially, Netflix treats its staff like adults and expects them to be reasonable. The MD says that most employees act responsibly and that “most companies fall into a trap of having 97% of their employees doing great work and not needing HR to hold their hands, while 3% of employees absorb HR’s time, money, and energy”. Netflix says it simply doesn’t hire those people.

Luckily, in the UK we are unencumbered by the temptation to trust staff – we have a whole raft of regulations (in particular the most excellent and practical Working Time Regulations) which ensures everything is straightforward and easy for employers.

On with the Employment Law News Update:

Admissibility of Covert Recordings

This is an interesting case because it pushes further at the boundaries of secret recording. We have previously reported on the Employment Tribunal’s willingness to include covert tape recordings of disciplinary/ grievance hearings. In the recent case of Punjab National Bank v Gosain, the EAT decided that comments captured from a hidden tape recorder during an employer’s private deliberations during a grievance and disciplinary hearing was admissible too. This is particularly the case where the conversations recorded do not form part of the employer’s deliberations on the matter at hand.

In this case, it was alleged that the employer had made wholly inappropriate comments about the employee during deliberations over a grievance complaint. The EAT held that a balancing exercise is required, weighing the general rule of admissibility of relevant evidence against public policy interest in maintaining confidentiality in private deliberations (e.g. in the internal grievance/disciplinary context).

Note: Before commencing settlement discussions, grievance or disciplinary hearings etc, employers should be careful to ask employees to confirm that phones are switched off and no recording devices are being used. If an employee leaves the room for any reason (e.g. while deliberations take place), be aware to any mobile phones left in the room.

Reforms to Rehabilitation Periods for Offenders

On 10 March 2014, reforms came into effect that reduce the period during which certain convictions need to be disclosed to potential employers. This is part of the government’s plan to help offenders get back into ‘honest work’ and prevent them from re-offending. Research from the Ministry of Justice shows that offenders are far less likely to reoffend if they gain employment.

The rehabilitation period for community orders and custodial sentences will now comprise the period of the sentence plus an additional specified period, replacing the previous system where rehabilitation periods began from the date of conviction.

However, when applying for jobs in sensitive workplaces such as schools and hospitals, offenders will still always have to disclose previous convictions. The most serious offenders will continue to have to declare their convictions for the rest of their lives.

ACAS Conciliation

More information is emerging as to how the ACAS conciliation process will work from 6 April 2014. It should be noted that Early Conciliation will not become compulsory for Claimants until 6 May 2014. From this date, prospective Claimants will have to contact ACAS before they issue a tribunal claim. A claim may only be presented to an Employment Tribunal after a certificate has been issued by ACAS to confirm that contact has been made with them.

Once an application has been filed online to ACAS by the Claimant the limitation clock will be paused throughout the duration of the negotiations and will only start again when the Early Conciliation Certificate is issued by ACAS at the end of the process (i.e. where settlement has not been possible). It should be noted that if the Respondent (employer) starts the Early Conciliation with ACAS the clock is not stopped and limitation remains the same.

ACAS have a period of one calendar month (extendable by up to two weeks) to negotiate settlement. Either party can withdraw at any point during the Early Conciliation process and an Early Conciliation certificate will be issued. Once the certificate is issued the limitation period clock starts ticking again. However, where the prospective Claimant has contacted ACAS with less than one month to go before the expiry of the tribunal time limit, they will still have a whole month from the day they receive the certificate from ACAS in which to bring the claim.

ENHANCE: Our Enhance members who have legal expense policies should note that if they have an ET1 trigger (i.e. insurance cover commences when a claim is made) I am pleased to advise that that the underwriters have confirmed that in principle the costs and settlements may be covered for compulsory conciliation on the basis that a ‘proper dispute’ has arisen that is likely to lead to claim in the absence of compulsory conciliation and this would be looked at on a case by case basis by the underwriters.

Surrogate Mothers and Maternity Leave

A woman who claimed paid maternity and adoption leave following receiving a child via a surrogate mother has lost her claim. After being granted a parental order she might have been forgiven for thinking that she would have similar rights to those enjoyed by birth mothers and adopting parents but the Tribunal not only rejected that claim but also found that there had been no discrimination on the part of the employer.

And Finally… Colemanballs

…Last week I accompanied my elderly mother to a ceremony where, amongst others, she was to pick up an award for charity work and various good deeds over the years. I’m not going to name the event because on the night the announcer had an absolute nightmare, starting with mispronunciation of names and, confidence through the floor, finishing with these two howlers:

Describing two worthy individuals he said “the community could have done without their help”;

Describing the activities of another group: “they assisted others with computer use and showed them how to do short pointless presentations”.

All became clear when he corrected it to ‘Powerpoint’. But I rather like his first version which neatly reflects commonly held views on Powerpoint…