Employment Law Coffee Break: Social gatherings, freedom of expression and employer reputation, and our HR pensions spotlight for November

Covid-19 and other considerations for employers holding social gatherings

Despite increasing public health precautions being introduced in Scotland, Wales and Northern Ireland, and across Europe, England is still operating under Plan A of its autumn/winter Covid-19 plan and as such, unlike last year, there are currently no restrictions on gatherings indoors or outdoors. In our latest Employment Law Coffee Break podcast, we talk to employment partner, Julian Hemming who highlights considerations for employers in the current climate, many of whom are keen for staff to celebrate after nearly two years of working through the challenges of the Covid-19 pandemic. Please listen here.

Freedom of expression and employer reputation: EAT warning to employers not to jump the gun

Employers are understandably increasingly concerned to deal with any behaviours outside of the workplace that have the potential to damage their business reputation. However, as highlighted in a recent decision by the Employment Appeal Tribunal, employers must take care not to jump the gun in any action taken to address any perceived misconduct.

Here, the claimant attended a political demonstration during which a conversation he had with another individual (attending a different rally outside Parliament) and in which he expressed his doubts that anti-Semitism caused the Holocaust and remarked that the Zionist movement at that time "collaborated" with the Nazis, was filmed and made public through the media and social media. Others posted and retweeted the video clip and expressed their own views about it. This took place without the claimant's knowledge or consent.

On becoming aware of the clip, the claimant was suspended and following disciplinary proceedings was dismissed. The dismissal was found to be unfair as a result of significant errors in the procedure adopted by the employer, including the fact that the claimant was not informed of the specific allegation which led to his dismissal – he had "not been told clearly why it was said by his employer that the relevant comments would bring [them] into disrepute; alternatively, how the employer considered they would be interpreted" and the fact that the possibility of a lesser sanction, a warning, was not discussed with him and which on the facts may have made a difference to the outcome. Upholding the Employment Tribunal's decision, the EAT stated that the purpose of a fair procedure is not a "tick box" exercise; it "should seek to ensure that an individual, whose future employment may be at risk, has the opportunity to convey relevant information to the decision maker prior to a decision being taken" and that "employers do not reach decisions on an inaccurate basis or without all the relevant information". A fair procedure is "an important part of good employee relations", enabling "both sides to reflect on matters relevant to the employment situation".

In an environment where discriminatory or prejudiced remarks can be quickly disseminated through social media and negatively impact on employer reputation and brand, employers are understandably focused on dealing with any issues that arise promptly and decisively but, as this case reminds us, this should not be at the expense of a full and fair investigation and procedure; an employer may not condone or agree with an employee's opinions but this is not in itself a fair basis for dismissal.

Pensions spotlight: What should you say about pensions in your employment contracts?

When you prepare an employment contract for a new employee, you have to include particulars of "any terms and conditions relating to pensions and pension schemes". But how much should you say? Here are our six top tips:

• Know your employee. A very basic provision could be: "We have a workplace pension scheme and will comply with our duties under the Pensions Act 2008". The appropriate notices relating to automatic enrolment would then follow. Where you offer more than the legal minimum you may wish to give more detail, such as the maximum available employer contribution in the case of a defined contribution scheme and (if relevant) what the employee must themselves contribute to benefit from it. Unqualified commitments can only be changed with employee agreement, so see our tips below on future proofing and references.
• Identify special cases. If you take on new employees following a TUPE transfer, a legal check is recommended in case you need to adapt your standard pension terms for the transferring employees to meet TUPE requirements. Also, you may be asked to consider special arrangements for high earners who are not able to benefit from the maximum employer contribution due to reductions to their Annual Allowance (for tax relief), for example lower pensions terms plus a cash top up. Automatic enrolment poses some risk to those with pension lifetime allowance protection who do not opt out. Employers have discretion not to automatically enrol such individuals.
• Think about contributions. If you include contribution levels, will member contributions always be deducted from pay, or do you operate salary exchange as the default or an option? Consider whether it is appropriate to mention this in the contract.
• Future proof. Use wording that will allow future changes, to include both changes by you (for example if you wish to replace the pension scheme with another) or by the pension provider or due to changes in law. Also, remember that pension schemes have detailed rules governing their operation and that membership should be subject to the rules from time to time. You can run into problems if your contracts give people an absolute right to be a member of a particular scheme on particular terms.
• Take care with references. If you say that more information about the scheme can be found in a booklet or handbook or on the intranet, the contract should include disclaimers to ensure that it refers to e.g. the booklet as amended from time to time. Appropriate disclaimers should also be included in the booklet. We recommend a legal review of such documents to make sure they work together as intended and give sufficient flexibility.
• Review other clauses. Are there any other clauses in the contract that need to address pensions / pensions rights in a certain situation so that it is clear what is (or, more importantly, is not) provided. Consider, for example, how death in service benefits are provided. Is this through the pension scheme itself or under a separate arrangement and is a higher level of benefit conditional on pension scheme membership? For some employers, it is possible that specific terms relating to redundancy touch on early retirement rights under a pension arrangement. Such rights can be very expensive and we recommend a legal review of such provisions.

If you would like to discuss them, please contact your usual Osborne Clarke contact or Claire Rankin.