Wednesday, 25 October 2017

Subject Access Rules Are Changing - Are You Ready in HR?

On May 28th, 2018,the data protection regime across the EU (including the UK) will change.The General Data Protection Regulation (GDPR ) will replace the provisions  of the Data Protection Act 1998.(DPA).

The GDPR preserves the rights provided under the current law and also provides new  rights and enhanced protection for individuals. Failure to comply with the provisions of the GDPR may lead  to greatly increased monetary sanctions,so it is critical that any organisations processing personal data are aware of the changes.

This data could include personnel records, metadata on computers and servers,CCTV, call logs, electronic premises access records, health and safety reports and any other electronic records or filing systems used within an organisation.

In addition, individuals will have a right to rectification of personal data being processed inaccurately by an organisation,and the right to data portability, essentially giving an individual the ability to have a copy of their personal data in a commonly used and machine-readable format.

Perhaps the most prominent and commonly used right under the DPA is subject access and this is changing under the GDPR. Organisations need to be aware of the changes and how to prepare for subject access requests under GDPR.

The GDPR defines personal data as "any information relating to a data subject" and a data subject as an identified or identifiable living person to whom personal data relates. Organisations must consider how to identify individuals, in particular employees.

Names clearly identify a person, but so may an email address, payroll number and computer login details. Careful consideration will need to be given to any other aspects of an organisation's operation that uses alternative designations (through coding or shorthand) to identify an individual.

Perhaps the biggest change to the subject access regime will be the time allowed for compliance. Less time will be available to organisations in order to comply with a subject access request. The current regime allows for 40 calendar days, but the GDPR will reduce this to one month.

Organisations may, however, be able to seek an extension of up to a maximum of two further months in cases of complex or numerous requests from an individual. If an organisation seeks an extension, it must notify the requester within one month of receiving the original request and set out why the extension is necessary. Any explanation will need to be sufficiently detailed in order to justify the request. It may be that the normal period of compliance will by default be stretched to three months in an employment context.

However, you will also need to provide additional information to employees requesting access to their data.This includes the envisaged period of storage and information about the data subject's rights.

Organisations should exercise their right,where legitimate, to ask the requester to specify the information relating to the request. This request will not pause the time for complying but it may be of particular use to those organisations that process large amounts of personal data, bringing the search into focus.

But why should the DGPR land in HR's in-tray? Surely data protection is the domain of your risk management team or the technical experts who monitor your systems?

Remember that abdicating responsibility for the GDPR would be a risky approach, as the new rules implement changes which will directly impact on the every day work of HR practitioners. Also important, the key concerns for departments handling employee data may be very different than for departments managing your organisation's interface with client and customer.

Deciding whether a request is "manifestly unfounded or excessive" will depend on individual facts and organisations should seek legal advice before making a determination.

Friday, 15 September 2017

Suspension is not always a neutral act - HR Guide

Suspension of Teacher Not a Neutral Act

In the case of a teacher suspended because of the alleged force she used with two children, the High Court has ruled that the suspension did, in fact, amount to a breach of the implied term of mutual trust and confidence. This has come somewhat as a surprise to practitioners who have been advising for years that suspension is a neutral act and perhaps a useful tool to 'slam the breaks on' whilst an investigation can take place. So many times have we seen policies which state that suspension should be seen as a neutral act and will be used: 'If the allegation against the employee is serious or that the presence of such an individual will impede an investigation'.

In Agoreyo v London Borough of Lambeth however the Appellant had not been asked for her response to the allegations against pupils O and Z and she resigned the same day. The Appellant had appealed against an order dismissing her claim against the Defendant for damages for breach of contract.

The Appellant is a teacher and , at the time of the material events in November/December 2012, had about 15 years' experience of teaching  and had worked previously with children with special educational needs. On November 8th, 2012, she entered into a contract with the Defendant to work as a teacher at Glenbrook Primary School, South London,having been  interviewed only the day before.

The Appellant ceased working in this role on December 14th, 2012,some five weeks later. She was suspended that day because of the force she used in three incidents involving O and Z and she also "resigned" on the same day.

The Executive Head Teacher, in her letter to the Appellant,said :" I must write to inform you of a decision taken today to suspend you from duty on your normal rate of pay with immediate effect.This is a precautionary suspension, in line with disciplinary procedure pending  a full investigation into allegations".

The allegations were 1) that the Appellant was seen to "drag a child very aggressively,a few feet down the corridor whilst shouting at him. 2) that " a child was dragged on the floor,out of the classroom door by yourself in the presence of another member of staff and the rest of the children and was heard to cry "help me",and that 3) "a child with special educational needs was told to leave the classroom,as he was unable to follow your instructions.When he refused you were heard to state: "If you don't walk then I will carry you out." You then proceeded to pick up the child who kicked and screamed in the presence of all the class children..."

The letter to the Appellant added that " the suspension is a neutral action and not a disciplinary sanction.The purpose of the suspension is to allow the investigation to be conducted fairly".

The Court argued that the Tribunal did not appear to have reached a specific conclusion about how difficult the two children,O and Z were. "The conclusion was to the effect that other teachers had been able to deal with them and that the Appellant had been given all the support to which she could reasonably  have expected to be entitled".

"It seems tolerably clear", argued the Court," that O and Z  presented, both individually and in combination, as a challenge to any teacher when confronted with the task of teaching and controlling  over 20 other pupils  of a similar age.
"The Appellant's Counsel at the trial advanced the proposition that the "behavioural difficulties" of O and Z were "severe".

The Court concluded, in finding in the Appellant's favour, that there were very strong reasons on the evidence heard for finding that the Defendant had been in repudiatory breach of contract and that the Appellant's so-called "resignation" amounted to a constructive dismissal.

The features which distinguish this case perhaps from others are that firstly, the allegations against the teacher were very serious and secondly that a decision to suspend, which would after all prevent her from working and risk defaming her, was decided as a 'knee jerk reaction'; no other option other than suspension was explored by The Respondent. Finally, The Claimant was not interviewed before the momentous decision to suspend was taken.

This new case is perhaps not as revolutionary as it has been received in some quarters, there certainly are relevant precedents, such as the case of 'Prospects for People with Learning Difficulties v Harris UKEAT/0612/11/DMUKEAT/0612/11/DM. Here, an employee with learning difficulties was suspended without consultation 'for her own safety' on the basis that she might slip and hurt herself in her role. There had been no such slipping incident in 8 years of her employment. The EAT found, despite arguments that suspension was 'a neutral act' that such a suspension was capable of being an act of harassment.

These cases show the importance of when advising clients, that the decision to suspend should not be treated lightly,should always be fair and undertaken with consultation. The ACAS Disciplinary guide should also be considered and gives the following helpful guidance:

'Any suspension is brief, and is never used as a sanction against the employee prior to a disciplinary meeting and decision. Keep the employee informed of progress'.

Agoreyo v London Borough of Lambeth EWHC/QB/2017/2019

Monday, 4 September 2017

New Vento bands for injury to feelings awards

A response to the recent consultation has been issued by The President of The Employment Tribunal for those seeking guidance on how high to pitch an injury to feelings award.  The new bands will apply to any claims issued on or after 11 September 2017 and will be:-

lower band (less serious cases): £800 to £8,400
middle band: £8,400 to £25,200
upper band (the most serious cases): £25,200 to £42,000
exceptional cases: over £42,000

Thursday, 17 August 2017

Latest on reimbursement of employment tribunal fees

The Employment Tribunals (England & Wales) have stated today:

"As you are probably aware, in advance of the Supreme Court’s judgment in the Unison case an undertaking was given to the Court to refund Employment Tribunal and Employment Appeal Tribunal fees, should the Fees Order be declared unlawful.

"We are now working on the detailed arrangements of the scheme to enable that undertaking to be met and we aim to ensure that the process is as simple and unobtrusive as possible for those who make an application, while ensuring that refunds are only paid to those who are entitled. There are, however, a number of points of detail that we do need to address including, for example, how to deal with refunds in claims involving multiple claimants, and how it will operate when the tribunal has ordered the opposing party to reimburse a fee.

"Please bear with us during this period, and we hope to be in a position to make an announcement on the details of the refund scheme during September."

Thursday, 10 August 2017

Long awaited tribunal pension guidance

The long awaited employment tribunal pension guidance has arrived 10 years after the last set. The Guidance is complex but crucial for working out compensation when it comes to pension loss.


Monday, 7 August 2017

New Laws Will Allow People to Claw Back Their Data

The General Data Protection Regulation (GDPR) will apply in the UK from 25 May 2018. The government has confirmed that the UK’s decision to leave the EU will not affect the commencement of the GDPR.

The GDPR applies to ‘controllers’ and ‘processors’. The definitions are broadly the same as under the DPA – ie the controller says how and why personal data is processed and the processor acts on the controller’s behalf. Both data processors and controllers will face further obligations imposed on them.

The definition of 'Personal Data' is expanded under the GDPR. Under The Data Protections Act 'personal data' requested under a SAR for example is set out information 'capable of identifying' those who make the request but is the definition found in The ICO Guidance provides caveats and contradictory statements which blur the meaning.

The GDPR’s definition is more detailed and makes it clear that information such as an online identifier – eg an IP address – can be personal data. The more expansive definition provides for a wide range of personal identifiers to constitute personal data, reflecting changes in technology and the way organisations collect information about people. Personal data that has been pseudonymised – eg key-coded – can fall within the scope of the GDPR depending on how difficult it is to attribute the pseudonym to a particular individual.

Personal data relating to criminal convictions and offences are not included, but similar extra safeguards apply to its processing (see Article 10).

"The new Data Protection Bill will give us one of the most robust, yet dynamic, set of data laws in the world," said Mr Hancock MP in a statement.
"It will give people more control over their data, require more consent for its use, and prepare Britain for Brexit," he added.
Proposals included in the bill will:

  • make it simpler for people to withdraw consent for their personal data to be used
  • let people ask for data to be deleted
  • require firms to obtain "explicit" consent when they process sensitive personal data
  • expand personal data to include IP addresses, DNA and small text files known as cookies
  • let people get hold of the information organisations hold on them much more freely
  • make re-identifying people from anonymised or pseudonymised data a criminal offence
  • This places a strong burden on firms to protect data and allows for significant fines if they fail to protect information or suffer a breach.

Tribunal Fees System Ruled Unlawful.

In what may be one of the most monumental employment decisions in recent times, the Supreme Court has just ruled  that the employment tribunal fees system is unlawful.

In R (on the application of Unison) v Lord Chancellor (Supreme Court), Unison's challenge to the employment tribunal's fees system succeeded at the final hurdle.

In a damning indictment of the use of high fees to reduce the number of cases,seven Supreme Court judges  decided unanimously  that the employment tribunal  fees system is  unlawful and the legislation that introduced the fees must be quashed.

The case has been described as one of the most important judgements in the history of UK employment law, and an important constitutional case,reiterating that the Government cannot use its powers to block citizens' access to justice.

It will now have to pay back around £32 million to claimants who have already been charged a fee since they were introduced in 2013.

The Supreme Court ruled that the Employment Appeal Tribunal Fees Order 2013,which allowed fees to be imposed in respect of proceedings in employment tribunals and the Employment Appeal Tribunal,was unlawful, both at common law  and under European Union law,and indirectly discriminating, because it effectively prevented access to justice.

The decision begs important questions.Firstly,will the system of fees  be abolished completely or will a new fee structure be introduced taking in mind the Supreme Court's ruling? Secondly ,what about all those people who chose not to bring  a claim when a claimant was significantly impeded from doing so by an unlawful fees regime?

R (on the application of Unison) v Lord Chancellor (2017) UKSC