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Archive for 2021|Yearly archive page

Dealing with DSARs

In business principles, discipline and grievance, Employment law, Uncategorized on March 30, 2021 at 10:45 am

Data Subject Access Requests (DSARs)

Employers sometimes have to deal with DSARs from employees trying to bolster grievances or from former employees. It can be very onerous to comply with DSARs, which are one of the core data subject rights under GDPR. The following guidance from the Information Commissioner’s Office provides some clarity on the subject.

Employers often hold large amounts of data on employees and if the employee has been vague or deliberately wide in the DSAR, it may be wise to ask for clarification as to the information sought. The ICO has now confirmed that the clock can be stopped while organisations wait for a requester to clarify their request.

Any DSAR must be dealt with effectively, within one month of receipt. This can be extended by two months if the DSAR is complex. Such complexity arises if it involves information from many different email accounts or requires a significant amount of redaction of others’ personal data.

As an employee making a DSAR does not have rights above other employees, redaction will need to occur if an employer must provide emails that contain personal data relating to others. Therefore, it’s possible that large sections of emails may be blacked out.

Following case law under the Data Protection Act, the ICO’s guidance makes it clear that data controllers should make reasonable efforts to retrieve data but should not conduct searches that would be unreasonable or disproportionate to the importance of providing access to the information. It is not necessary to ‘leave no stone unturned’ – reasonable efforts should be good enough.

Employers need to be able to demonstrate they have looked in any email back-up systems and data saved on individual managers’ PCs. As a result, it is likely that managers may need to be asked to check and confirm they have not saved such information outside of their email account.

Organisations may also wish to closely consider retention periods for employee data. Keeping all data and emails relating to an employee during their 20-year career is likely to make an employer wish it had brought in a retention policy to delete data after six years, if a detailed DSAR is raised.

Data controllers need not comply with manifestly unfounded and excessive requests and the ICO has now provided additional guidance and broadened its definition of these terms. To determine whether a request is manifestly excessive employers should consider whether it is clearly or obviously unreasonable, considering all the circumstances. They should be prepared to justify their position to the ICO in the event of a complaint.

The ICO confirms what can be included in the “reasonable fee” that can be charged for dealing with excessive, unfounded or repeat requests. The fee should be reasonably calculated and can include the costs of making the information available, including photocopying or using an online platform, equipment and staff time. Data controllers may wish to give some thought to their hourly rates and whether they can provide information about these in their privacy notice.

Complaints about how an employer responds to DSARs are sent to the Information Commissioner, although employees often attempt to complain about it to employment tribunals as well. In extreme cases the Information Commissioner can serve enforcement notices and impose financial penalties.

Despite what employees often think, the Information Commissioner cannot award them compensation, although they could bring a court case seeking compensation for harm and distress arising out of failure.  

Sleep-in Payments Ruling

In contracts, Employment law, pay, Uncategorized on March 23, 2021 at 9:32 am

The Supreme Court has ruled that care workers are not entitled to national minimum wage for ‘sleep-in’ shifts. This follows appeals in the cases Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home).

The court referred to a recommendation first made in 1998 by the Low Pay Commission, and accepted by the government as part of the National Minimum Wage Regulations 1999, that sleep-in workers should receive an allowance and not the NMW unless they are awake for the purposes of working. The same recommendation was also included in the National Minimum Wage Regulations 2015.

It was however made clear that this ruling only applies to shifts where an employee is expected to sleep during their shift, which the claimants in this case were.

Making Flexible Working Work

In contracts, covid-19, family, Uncategorized on March 16, 2021 at 11:03 am

Flexible working arrangements are now helping to keep many businesses operational amidst restrictive coronavirus regulations. Many companies that once thought flexible working arrangements could not work for them, are now functioning with remote working and flexible working hours. The picture is very mixed. At one end of the spectrum Microsoft has decided that some jobs will no longer return to the office. This is diametrically opposed by Goldman Sachs saying that home worker is “a temporary aberration” that does not fit their dynamic interactive culture.
 
In our experience there is a place for homeworking. For the majority that is not full time but a portion of the working week. The “closed-minded” approach of an employer may now find some kickback!
 
This can include reduced stress to better engagement. It is recognised that employees able to achieve a work-life balance are more likely to be happier and more productive at work. It could be that it’s simply different working hours or some days working remotely. There are recruitment and retention benefits too. Opportunities for flexible working is likely to be a question from candidates in the future and some employees may start to seek out an employer who has a flexible working policy in place.
 
However, we suggest that now is the time for employers to assess potential benefits as part of the inevitable excess of re-examined job roles and functions upon return to the workplace post-Covid and in the foreseeable future.
 
There will be some compliance issues: working hours are subject to the Working Time Regulations. A change in location must be preceded by a health and safety risk assessment in respect of that workplace and equipment being used.
 
A foundation of trust is also needed for flexible working practices to be effective. For example, remote staff or out-of-hours working can mean less day-to-day visibility. Staff surveillance software is available, but this may undo all the good that flexible working can achieve and does not always make for a good relationship between the parties.
 
Also, consideration needs to be given to the impact of changing working procedures for some that can impact significantly on others, from employee workflow to client relations.
 
Just because a working pattern has been in place since lockdown, it is not necessarily the best thing for your business. It might be, but it might not. The sooner steps are taken to have those discussions the “returning” or “non-returning” workers the better! 
 
Changes that you agree to should improve and not hinder your business in the long run. If you wish to discuss how flexible working might work in your business, email us to book a flexible working strategy call. 

Covid-19 vaccination: What can an employer do if an employee refuses to have a vaccine?

In covid-19, Employment law, Equality on March 10, 2021 at 11:00 am

Most people will welcome the opportunity to be vaccinated against COVID-19, but there will be a minority who will be reluctant or refuse to have the vaccine. The reasons could be many and varied, including individuals who cannot have the vaccine (for example, on medical grounds), those who can have the vaccine but refuse (for example, on religious or spiritual grounds) and those who can have it but have concerns and are uncertain (for example, due to a fear of vaccinations generally).
 
The Health and Safety at Work Act 1974 obliges employers to take reasonable steps to reduce any workplace risks; this duty gives employers justification for encouraging their employees to be vaccinated to protect themselves and everyone else at the workplace. COVID-19 is also a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (known as RIDDOR) which strengthens employers’ encouragement that employees should agree to vaccination.
 
It may be prudent now for employers to begin planning for the wider rollout of the vaccine. Perhaps encourage concern staff with impartial, factual information or at least guide them towards it. Staff will need to be informed about the workplace controls measures and the impact and risks of COVID-19. Experience has shown that this needs to be repeated.
 
The press has reported that some employers want to make vaccination mandatory. One example Pimlico Plumbers (no strangers to the employment courts) stated that all new workers would have to receive or have received the vaccine. The phrase ‘no jab – no job’ was coined. Interviewed on Radio 5 the owner actually confirmed that he had no intention of firing anyone, or indeed enforcing the policy.
 
What we know for sure is that employers cannot forcibly vaccinate employees or potential employees. Mandatory vaccination is an intrusion on an employee’s body and would be an assault. More relevant in the workplace is forcing a vaccine may amount to indirect discrimination on the grounds of disability or religious or philosophical belief. Some employers would have a justification to act in that way, but this is not the answer in every case. The government has so far shown no intention of introducing legislation to make vaccines mandatory, but we may have to watch this space.
 
So, what if employees refuse vaccination? For the employer to discharge their health and safety duty, they may need to consider other steps. An employer could consider potential disciplinary proceedings for failure to follow a reasonable instruction in certain settings (such as health or care), but this approach is not without risk and any employer considering this should seek specific advice from us before doing so.
 
Can the employer insert a clause into the employment contracts for new employees? Existing employees can be asked to agree to a compulsory vaccination clause as a variation to their existing contracts of employment.  However, even if employees agree to vaccination in their original employment contract or a variation of it, employers still cannot physically enforce this as an individual’s consent is always required for any medical intervention. Employers enforcing a change without employees’ agreement would be in breach of contract and employees could resign and claim constructive unfair dismissal.
 
Failure to follow an employer’s reasonable instructions can lead to disciplinary processes and dismissal. Whether an instruction to have a COVID-19 vaccine is reasonable has not been tested in the tribunals and courts. As there is at least a risk of unfair dismissal, discrimination and other claims, employers should consider their position very carefully before moving towards disciplinary processes and dismissal. Being a test case as one of the first employers to dismiss on the grounds of vaccine refusal is likely to be time consuming and potentially expensive.
 
Every employment contract contains an implied term that employees must follow their employer’s reasonable instructions. Whether an instruction to be immunised is reasonable depends upon the facts of each case, for example the nature of the role, the numbers of clinically vulnerable colleagues, the size and layout and people contact in the workplace. For example, employers in a nursing home may be able to issue a reasonable instruction to employees to be vaccinated because refusal could put vulnerable people at risk. Employers in another sector such as accountancy, where it has been shown that work can be done effectively from home, may be in a weaker position and an instruction to be vaccinated may not be deemed reasonable.
 
This is clearly not an area without risk and organisations should ensure they have up to date risk assessments and policies in place. As always if you wish to discuss this topic further please contact your consultant. 

Spring Budget update

In Uncategorized on March 8, 2021 at 12:35 pm

Last week the Chancellor announced this year’s budget. We highlight the key points from the HR perspective below:

Furlough

  • Extended to the 30th September 2021.
  • Employees will continue to receive 80% of wages (up to the set maximum). This will be funded in full by the government until the end of June.
  • From July the government will start reducing its contribution. Businesses will need to contribute 10% from July and 20% from August.

Sick Pay

  • For businesses with less than 250 employees, 2 weeks Statutory Sick Pay can still be claimed from day 1 for anyone off sick or instructed to isolate and unable to work due to Covid-19. There was no mention of this being withdrawn.

National Minimum Wage

  • Increased to £8.91 ph from 1st April. (For a full table of updated statutory rates see our newsletter)

Apprenticeships and Kickstarter

  • Incentives raised for businesses taking on apprentices.
  • Kickstarter scheme enabling businesses to hire a long term unemployed 16 – 24 year old. The Government will fund up to 25 hours a week at National Minimum Wage for 6 months.

Training and Recruitment

Enrolment for two new training schemes will  open soon:

  • Help to Grow Management –management training with mentoring and with the Government covering 90% of the cost; and
  • Help to Grow Digital – offering small firms free training and 50 per cent discount on software.