Childcare Counsel - social media messages, rest breaks

Q Can the nursery be responsible for messages or images posted by staff on social media?

A Yes, if the offending act takes place in the course of employment. But there is no clear rule on defining the connection between practitioners’ actions and their employment.

In a recent case, a claimant alleged harassment, victimisation and discrimination arising out of an image that a work colleague had shared on Facebook. The image was not posted while at work, the colleague had used her own computer, the post made no reference to her place of work and the image was posted to a group of friends that did not include the claimant. In this instance, it was ruled that there was an insufficient link to employment.

However, there are cases where the employer has been held liable. This, therefore, serves as a reminder to review social media policies and repeat messaging to employees that conduct could be considered to be in breach of that policy, even where postings are made outside of work time.

Q Is there a legal obligation to keep records of daily and weekly rest breaks and working time?

A The Working Time Regulations do not require records to be kept in relation to the right to daily and weekly rest periods, nor do they explicitly require a record to be kept of the worker’s daily working time. Indeed, where workers have opted out of the average weekly working time limit, there is no obligation to keep records of their working time, only a list of opted-out workers.

However, a recent decision in the Court of Justice of the European Union ruled that the Working Time Directive requires member states to ensure that employers keep daily records of the working time worked by each worker.

It is possible the UK Government may opt to change the Working Time Regulations in light of this case. In the meantime, employers would be wise to review what records they do keep, to ensure compliance with regulations.

Send your questions to hannah.crown@markallengroup.com