Havering Solicitors

HAVERING EMPLOYMENT SOLICITOR ANSWERS TO FREQUENTLY ASKED QUESTIONS

When is a person considered self-employed or employed ?

A person is generally considered to be employed where the employer controls the nature of the work as well as the location and time, pays wages and provides the necessary equipment and tools need for the person to carry out any duties.  A person will generally be considered to be self-employed where the person is allowed to employ others to help them, where the work is paid on a fixed basis regardless of the time taken to complete it, where the person provides their own tools and equipment, where the worker is not entitled to certain statutory rights (such as sick pay) and, finally, where the person has a large degree of control on how, when and where they work.  Bear in mind that the distinction can be a fine one and this is only to be used as a general guide.

Am I legally entitled to use social networking sites such as Tweeter or Facebook at work ?

This is quite a difficult question to answer simply and depends on a whole host of factors.  Generally speaking, you should not use social networking sites to make complaints about your employer, any associated businesses or employees, even outside of working hours, as this will be considered a disciplinary offence by most employers.  Whilst there is no concrete legal right to use social networking sites during working hours, there is little legal basis to deny employees access to such sites during lunch breaks unless there is concrete evidence that they are being used in such a way that is harmful of the employers reputation.  In some cases, use of social networking sites could be critical to fulfilling the duties of your employment (particularly professional social networking sites such as Linkedin) and if you are denied usage where this is true and consequently leave your job, you could have a possible claim for constructive unfair dismissal subject to other requirements being fulfilled.  In any case, it is best to negotiate directly and informally with your employer or indirectly through union representations.   Havering employment solicitors will also be happy to advise you on your position.

What is constructive unfair dismissal ?

Constructive unfair dismissal happens where an employee leaves his job due to circumstances created by his or her employer.  A wide-range of situations are possible and could, for example, include cases where your employer has changed your wages without your consent; health and safety regulations have not been followed; the employee has been bullied, harassed or discriminated against and the employer has not taken action to stop it; the amount of work has unreasonably been increased or the employer has changed the location of work without proper consultation.

I have been dismissed without notice or pay.  Is this legal ?

‘Summary dismissal’, that is dismissal without pay or notice, can only be justified for instances of gross misconduct.  If, for example, the employee committed a criminal offence in the workplace, that would be considered an example of gross misconduct.  In absence of gross misconduct, your employer must give you the statutory notice period you are entitled to or the notice period agreed in your employment contract, whichever is longer.  You may also be entitled to accept payment in lieu of notice which will cover the pay you would have received up until the point you would of worked or be requested to stay at home and not work, but still be paid (known as gardening leave)

Can I retain the intellectual property rights to my work ?

If you create things during the normal course of your employment (for example, part of your job description is to create articles for the company website) in order to fulfil the duties of your role, and do so at the workplace during working hours using the company’s equipment or tools, then the company will generally own the intellectual property rights to your work.

Havering employment law advice can also be found here.