Employment Law Newsletter Spring 2018 Are You Ready For GDPR? GDPR brings together 28 different pieces of legislation across 28 different countries/jurisdictions. The new rules are designed to create conformity and consistency of how data is processed across Europe but also ensure that the data of European citizens is protected throughout the world. Leaving the EU does not change things. As current EU members we must comply and the Government have confirmed that we will continue to comply with GDPR. After leaving Europe, as we will largely be dealing with the data of European citizens, we will need to ensure compliance. It is also highly likely that the UK government will want to ensure that the data of our own citizens is protected and we are unlikely to see a massive deviation from what will be brought in across Europe generally. Continues pages 4 & 5 Rest Breaks Equality Act Holiday Pay & more New wide-reaching data protection legislation was introduced by the EU in 2016. The rules will be enforced in the UK from 26th May 2018 with stiff penalties for transgressors. Is your company prepared? You may assume that because a person is not suffering from a disability that you cannot discriminate on the grounds of disability. You could be wrong. It is possible for disability discrimination to occur in circumstances where there is a perception that a condition could become a disability in the future. In the recent case of Chief Constable of Norfolk v Coffey, the Employment Appeals Tribunal upheld a finding of disability discrimination by perception. In this case, the Claimant was a serving police officer in the Wiltshire Police who applied to transfer to the Norfolk police force. She suffered with hearing loss and under normal circumstances would have been rejected by Wiltshire Police, but they allowed her application after a successful function test. Norfolk Police rejected the transfer request because they considered her hearing to be below acceptable levels, regardless of the function test. Norfolk Police were concerned that she may end up on restricted duties if her hearing deteriorated. The Tribunal found that this decision was direct discrimination based on a perception that she would be disabled in the future. The EAT agreed with this decision, stating: “There would be a gap in the protection offered by equality law if an employer, wrongly perceiving that an employee’s impairment might well progress to the point where it affected his work substantially, could dismiss him in advance to avoid any duty to make allowances or adjustment.” This case is a reminder of the wide protections of the Equality Act 2010. Employers must consider their decisions carefully and how they may impact on someone not only with a disability or other protected characteristic, but also those with a perceived disability or perceived protected characteristic. Perceived Disability Discrimination
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Employment Law Newsletter Spring 2018
Are You Ready For GDPR?
GDPR brings together 28 different pieces of legislation across 28 different countries/jurisdictions. The new rules are designed to create conformity and consistency of how data is processed across Europe but also ensure that the data of European citizens is protected throughout the world.
Leaving the EU does not change things. As current EU members we must comply and the Government have confirmed that we will continue to comply with GDPR. After leaving Europe, as we will largely be dealing with the data of European citizens, we will need to ensure compliance.
It is also highly likely that the UK government will want to ensure that the data of our own citizens is protected and we are unlikely to see a massive deviation from what will be brought in across Europe generally.
Continues pages 4 & 5
Rest Breaks Equality Act Holiday Pay
&more
New wide-reaching data protection legislation was introduced by the EU in 2016. The rules will be enforced in the UK from 26th May 2018 with stiff penalties for transgressors. Is your company prepared?
You may assume that because a person is not suffering from a disability that you cannot discriminate on the grounds of disability. You could be wrong.
It is possible for disability discrimination to occur in circumstances where there is a perception that a condition could become a disability in the future. In the recent case of Chief Constable of Norfolk v Coffey, the Employment Appeals Tribunal upheld a finding of disability discrimination by perception.
In this case, the Claimant was a serving police officer in the Wiltshire Police who applied to transfer to the Norfolk police force.
She suffered with hearing loss and under normal circumstances would have been rejected by Wiltshire Police, but they allowed her application after a successful function test.
Norfolk Police rejected the transfer request because they considered her hearing to be below acceptable levels, regardless of the function test. Norfolk Police were concerned that she may end up on restricted duties if her hearing deteriorated.
The Tribunal found that this decision was direct discrimination based on a perception that she would be disabled in the future. The EAT agreed with this decision, stating:
“There would be a gap in the protection offered by equality law if an employer, wrongly perceiving that an employee’s impairment might well progress to the point where it affected his work substantially, could dismiss him in advance to avoid any duty to make allowances or adjustment.”
This case is a reminder of the wide protections of the Equality Act 2010. Employers must consider their decisions carefully and how they may impact on someone not only with a disability or other protected characteristic, but also those with a perceived disability or perceived protected characteristic.
Perceived Disability Discrimination
Deaf Mum Sues Concert Promoter In
Equality Act Case
The promoter of the pop group Little Mix is being sued by a deaf woman for failing to provide a British Sign language interpreter for the entire duration of a concert.
This case raises the question as to how far should events promoters go to make reasonable adjustments to those who have disabilities.
The promoters, LHG Live are being sued by Sally Reynolds, the parent of an eight year old fan of Little Mix, for the alleged failure of the promoter to comply with the Equality Act.
The concert was staged last September in Sussex.
Sally Reynolds was due to attend the concert with her daughter and her two friends (who were also deaf) and their children.
She considered that it was important that she and her two friends could fully access the songs like her daughter and asked LHG Live to provide a British Sign Language interpreter.
At first she was offered carer tickets and told that she could bring her own interpreter. However she refused the offer as she thought that it didn’t constitute full access or meet her needs.
LGH refused to provide an interpreter so Sally Reynolds instructed her lawyers to apply for a court injunction to force LGH Live to provide a British Sign Language interpreter. Shortly before the concert start, LGH Live backed down and agreed to provide a British Sign Language interpreter.
However, the interpreter did not cover the entire concert but only part of it. The interpreter had not been booked to cover the two supporting acts.Sally Reynolds is therefore continuing with her claim in the courts for damages.
Under the Equality Act 2010, there is a duty on any organisation which is providing services to the public to make reasonable adjustments to ensure that disabled service users are not put at a substantial disadvantage.
The duty includes making reasonable adjustments to potential barriers such as policies, procedures or criterion applied which may also place disabled customers at a disadvantage when seeking access to services.
The Act applies to all areas of the service industry including the hospitality and leisure sector. There is a lack of clear guidance in deciding how far an organisation should go in providing reasonable adjustments.
Factors to consider include cost, health and safety, the effect on other service users, and practicality. Many cases are fact-specific making it difficult to create definite precedents and there is still a degree of uncertainty in this area.
It remains to be seen in this case if the court will agree that LGH Live did fail to make sufficiently reasonable adjustments in this case and the case will be watched with interest by disabled service users and across the service industry as a whole.
In an important recent case on holiday pay, the European Court of Justice has ruled that a worker is entitled to be paid on the termination of his employment for any periods of annual leave that have accrued during the employment.
This is where the worker has been discouraged from taking the annual leave because the leave would have been unpaid. The Court held that there was no limit on the amount of leave that could be carried over in this type of case. The decision is very significant for workers who have been wrongfully classified as independent contractors. It could give them the right to claim many years of unpaid holiday pay and is therefore particularly significant for workers in the so called “gig economy”.
In this case, Mr King worked for the Sash Window Workshop. He joined the company in 1999 and he worked on a commission only basis. He received no pay from the company when he was either on holiday or ill. In 2008, the Sash Window Workshop offered him a Contract of Employment, but he decided to remain self-employed.
He left the company in 2012 and he then brought various claims in the Employment Tribunal including a claim for the holiday pay he had not received for a period of over 13 years.
The Court stated that where an employer has not provided a worker with paid leave, the right to paid leave carries over until the worker has the opportunity to exercise it. Otherwise on termination of employment the worker has the right to payment in lieu of leave that remains outstanding.
The case means that if an individual is found to be a worker and he or she says that they would have retrospectively taken more holidays if they had been paid for them, then the worker would be entitled to carry over the holidays until he or she is paid for them on termination.
This means that individuals may claim holiday pay going back a number of years, as the European Court said that there should be no limit on any carry over. Employers who have failed to provide their workers with the ability to take paid leave may be looking to very substantial liability for many years of untaken holiday.
The case is of particular importance given the numerous worker status cases involving companies such as Deliveroo and Uber as well as other companies that employ individuals in the “gig economy”. The European Court said that if an employer wrongly concludes that an individual is not entitled to paid holiday because they have classified him as being self-employed, it must take the consequences if it is held that person is a worker and hasn’t been allowed to exercise their rights.
The case is now going back to the Court of Appeal which will have to decide whether the Working Time Regulations can be interpreted consistently with the Court’s ruling.
It is considered by many that in light of this decision that the 2 year limitation on back pay under the UK law is inconsistent with European law as far as holiday pay claims are concerned.
Holiday Pay Bombshell Delivered By European Court Of Justice
GDPRWhat changes does it bring?
Summary of what you need to know and what you need to think about:
There is much that is new but really this is just an evolution of the data protection laws we have seen in force in the UK since the Data Protection Act 1998 was brought into force. Since then there has been an evolution in the way we all work and live and the way that data is stored. The internet and the of use technology in our day-to day-lives generally has become an important consideration.
The evolution in data protection and GDPR has this at the forefront of many considerations. There are changes to what constitutes personal data, what fines can be issued if there is a breach, reduction in the length of time for dealing with subject access requests to one month, requirement for consents to be beefed up, and the need for increased use of privacy notices across businesses.
Remember, accountability and governance are key. GDPR is all about board level decisions and the board being aware of GDPR, and how it affects their business. The ICO has been quite vocal about this, and it is thought that where there are breaches, the ICO will look at the top down.
Don’t be fearful of the changes. This is an evolution and you probably have a lot of what you need already in place and just need guidance on how to ensure you are compliant by 26 May 2018.
We can advise on employment law relating to GDPR and our company commercial team are also able to advise on the commercial aspects, including updates to websites, privacy notices, website contact forms, terms and conditions, third party agreements, and data processing agreements.
If you would like to discuss any needs your business has or require a GDPR GAP analysis for the HR and/or commercial side of your business, please telephone Amy Hallam on 01246 564012 or email [email protected]
1. It applies to all living individuals. The data subject.
2. It applies to companies in the EU but also those who process the data of any individual in the EU.
3. It applies to ‘personal data’ which is any information relating to any identifiable person who can be identified directly or indirectly by the identifier. Examples: name, address, postcode, Facebook profile, driving licence number, passport number, IP address. Encrypted data can also be caught.
4. Sensitive personal data - such as medical information, GP fit notes have additional storage requirements.
5. Ensure you give privacy notices before you collect data
6. Ensure you get consent for how you store data, what you will do with it, and what the data subject is allowing you to do with it. This applies to current and new employees and customers. There must be a positive opt in.
7. Ensure individuals know how to request their personal data be removed or amended.
8. Ensure your staff are trained and understand GDPR. Keep records of training.
9. Ensure your staff know what to do if there is a breach – there is only 72 hours to report certain breaches to the ICO.
10. Ensure staff know and understand how data can be hacked or obtained – showing you have completed cyber security training and kept a record of it could be crucial if a breach occurs.
11. Ensure staff know what to do with a subject access request and the deadline of 1 month.
Recent months have seen two particularly interesting decisions in the courts relating to surveillance at work and CCTV.
In López Ribalda and Others v. Spain, a ruling from Strasbourg decided that it was a breach of Article 8 right to privacy where a supermarket installed surveillance cameras to address occurrences of theft in the workplace.
Theft at work is something that commonly arises in public houses and retail, and is where companies often make enquiries about whether or not covert cameras can be installed to try and catch the culprit. In this case, the employees were informed about the cameras that were visible to them, but they were not informed that in addition to the visible cameras, there were also covert cameras in operation.
Several employees were dismissed by the company after they relied on the covertly obtained images.
The Spanish court decided that the use of the covert cameras were justified, appropriate, necessary and proportionate. However, the European Court of Human Rights in Strasbourg disagreed and said that Article 8 was violated. Video surveillance in the work place was seen to be a considerable intrusion into private life, and that a fair balance between the parties rights had not been struck.
In order to comply with data protection laws an employee must be explicitly, precisely and unambiguously informed of a personal data file, how that data is processed and stored and the purpose for the collection. If something is done covertly how can there be consent?
This is a particularly significant decision taking into account the impending 26 May 2018 GDPR enforcement date, and a reminder to all using CCTV what information needs to be given to those you are recording.
If you use CCTV in the workplace you should review and update current policies and procedures to ensure compliance.
Surveillance & CCTV at work, & the overlap with
GDPR/data protection
More Reasons To Think About Cyber SecurityVicarious liability for data protection breaches
This is a summary of a case that has seen a lot of press coverage since it occurred. In 2014, the data of 10,000 Morrisons supermarket employees was stolen by a rogue employee and shared on a website.
Two months after the breach, three CDs were sent to newspapers. Two of the newspapers alerted Morrisons to the breach and within hours they were taking steps to remove the data from the website.
On investigation it was found that a senior IT auditor had done the deed after he had been suspended and dismissed, he was subsequently arrested and sent to prison for 8 years.
The taxi firm and almost permanent news subject Uber has lost its appeal against a ruling that its drivers should be treated as workers rather than being self-employed.
Despite the fact that Uber’s 50,000 drivers are required to sign an agreement which classifies them as self-employed, the Employment Appeal Tribunal has held that the Uber staff are workers.
This means Uber workers are therefore entitled to holiday pay, paid rest breaks and the minimum wage. review recommendations will be implemented.
The case has a huge impact for workers who work in the “gig economy”.
Research by the Citizens Advice Bureau has suggested that as many as 460,000 people could be falsely classified as being self-employed. This costs the revenue up to £340 million a year in lost tax and national insurance contributions.
Other cases have been brought by workers in the gig economy in companies such as City Sprint and Deliveroo and it has been held that they are workers and not genuinely self-employed.
The ruling in the Uber case could force a rethink of the gig economy business model where companies use apps and internet to match customers with workers. Uber itself is a global operation and the company is valued at more than £50 billion.
Uber is appealing the decision to the Court of Appeal.
The Taylor review made recommendations on the question of worker status but as the government is bogged down with Brexit it is unlikely that the Taylor review recommendations will be implemented.
If you engage staff on a self-employed basis, then it may be worthwhile taking legal advice on the arrangement and if it is likely that the arrangement will be held to be a genuinely self-employed arrangement or the risk of the staff being held to be workers and therefore have the right to claim holiday pay and the national minimum wage.
In a case brought before the courts against Morrisons by 5,518 of its employees, it was held that Morrisons had not done anything wrong and that they had not breached any data protection principles, and that the sole purpose of what the rogue employee did was to get at Morrisons.
However, despite all this, Morrisons were still liable for the actions of their employee.
Whilst this is a situation that is virtually impossible for a company to protect themselves against, it shows how important it is to ensure that you are as up to date as possible with data protection controls and GDPR.
It is vital that you have as many safeguards in place to catch or stop something like this from occurring, as this will help in the defence in any claim and possibly also in the value of any claim for damages.
Uber Loses Appealing The Employment Appeal Tribunal
The Working Time Regulations specify that a worker is entitled to a rest break of not less than 20 minutes when the worker works over 6 hours.
In the case of Crawford -v- Network Rail Infrastructure Limited, Mr Crawford worked as a relief cover signalman at various signal boxes in the South East.
He had to continuously monitor and be on call in the event that trains were going through. He could take short 5 minute breaks which overall would amount to over 20 minutes over his shift.
However it was not possible for him to have a continuous 20 minute break. The employer argued that this was sufficient to be the 20 minute break requirement of the Working Time Regulations.
The Court of Appeal disagreed with the employer’s view.
It said that the 20 minute rest break period meant that an employee should have an uninterrupted break of at least 20 minutes during the day.
It emphasised that otherwise this would not be a proper period of compensatory rest. It said that during the rest period it was important that the worker was free from having to do any work.
It is therefore important to ensure that where workers work over 6 hours in any period that the 20 minute rest break is a continuous rest break of at least 20 minutes to comply with the Working Time Regulations.
Rest Breaks20 minutes means an uninterrupted 20 minutes
For more help and information on anything discussed in this newsletter, please contact our Employment Law Team
• 8 March 2018 HR Forum (in conjunction with East Mids Chamber) Dunston Innovation Centre
• 20 March 2018 GDPR Workshop (Hosted by Central Technology) Crucible Theatre, Sheffield
• 7 June 2018 HR Forum (in conjunction with East Mids Chamber) Chesterfield Golf Club
Please email [email protected] to book your place or request more information.
Taxation of Termination PaymentsAs an employer, you will be familiar with termination payments, which can arise in a number of ways, such as dismissal, redundancy, retirement or some other “agreed” departure, such as under the terms of a settlement agreement.
It is important that you understand when a termination payment is subject to tax or not, because if it is not done correctly, HMRC can recover not only the unpaid tax, but NI contributions, penalties and interest.
If you are unsure, it is recommended that you take appropriate advice.
The Finance Bill 2017 takes effect from 06 April 2018 and will bring about certain changes, but the main 3 points are as follows:
1. All payments made in lieu of notice (PILON) will be taxed as earnings and so will be subject to employer/employee tax and national insurance deductions (the contractual/non-contractual distinction will be removed)
2. Termination payments of up to £30,000 will remain exempt from income tax and NI (but any amount above this threshold will be subject to employer NI, whereas it wasn’t previously)
3. Payments for injury to feelings will be taxable (however payments made in relation to an employee’s disability or injury where the disability or injury prevents the employee from carrying out the duties of their employment will remain exempt from tax)
The Bill is intended to simplify the tax system, however employers should be aware that the changes are likely to make termination more costly due to the changes in the treatment of PILON clauses and compensation payments above £30,000.
We may see an increase in employees seeking to demand higher termination packages to counter the new lower net figure that the employee is likely to receive after deductions.
As the liability for tax is expanding, it is recommended that you ensure that there are robust indemnities put in place on termination in order to try and protect your business.
