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Archive for the ‘business principles’ Category

Recent Cases of Interest

In business principles, contracts, Employment law, Equality, Uncategorized on September 27, 2021 at 10:54 am

Forstater v CGD Europe and Others – Discrimination on the Grounds of Philosophical Belief

The Equality Act 2010 protects against discrimination based on 9 protected characteristics, namely age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, pregnancy and maternity.

In the recent case of Forstater v CGD Europe and others, Ms Forstater registered a claim with the Employment Tribunal that her contract with CGD Europe, who are a registered research or think-tank charity, was not renewed because of her gender-critical beliefs.

Before deciding whether there was any wrongdoing on the part of CGD Europe, the Tribunal had first to consider whether her belief was indeed protected by the Equality Act.   

In a complex scenario centred around transgender rights and identity, Ms Forstater’s viewpoint was, in a nutshell, that biological sex was real, important and unable to be changed. Her claim raised the debate about the scope of trans rights and the relevance of an individual’s biological sex, versus their gender identity.

Initially the Tribunal found that Ms Forstater’s beliefs were contrary to trans rights previously established by the European Court of Human Rights. However, the Tribunal’s decision has now been overturned by the Employment Appeal Tribunal, who considered that Ms Forstater’s views were deserving of respect and that only the most extreme beliefs should be excluded from protection under the Equality Act.

Ms Forstater’s claim has therefore now been referred back to the Employment Tribunal for them to consider whether CGD Europe’s original decision not to renew her contract was discriminatory.

Follows v Nationwide Building Society – Indirect Associative Discrimination

Ms Follows had been employed by Nationwide Building Society as a Senior Lending Manager and for the last 7 years had been home-based allowing her to look after her disabled mother.

As a result of a re-structuring exercise the society decided to reduce the overall number of Lending Managers and stipulated that those to be retained must be office-based. As a result, Ms Follows made a claim to the Employment Tribunal of unfair dismissal, indirect associative discrimination and indirect sex discrimination.

The tribunal upheld all of these claims against the Nationwide on the basis that the stipulation about office working put Ms Follows at a disadvantage because of her association with her disabled mother and that her dismissal had taken place without reasonable steps being taken to avoid that disadvantage.

This is the first time that a claim of indirect associative discrimination has been upheld since the introduction of the legislation in the UK.  

Proposed Flexible Working from Day One

In business principles, contracts, Employment law, family, government on September 27, 2021 at 10:47 am

The Government has launched a consultation into changing current flexible working legislation. This is open until 1 December 2021. Its proposal is to make the right to request flexible working from day one of employment.

Its aims to bring more employees in to the scope of the legislation and believes it will benefit productivity, motivation, retention and help attract more talent to organisations.

Its proposal is to introduce measures to help make flexible working the default, unless employers have good reasons not to. The consultation will also assess whether the current 8 business reasons for refusal are still valid. The process of managing flexible working requests and the time scales will also be assessed. There is also consideration to allow employees to submit more than one request per year, which is currently all they are entitled to do.

We will await the outcome of the consultation and if the proposal is approved we can assist you with amending your current policy within the handbook to ensure you continue to be legally compliant.

Until then, all current rules and processes will remain in place as usual.

Covid-19: Workplace measures

In business principles, covid-19, Employment law, government, Uncategorized on September 1, 2021 at 9:04 am
What do employers need to do to keep work place safe?

Workplace rules for wearing face masks or visors, hand washing, distancing, pedestrian routes, workstation sanitation or other hygiene measures and other shielding / preventative controls measures remain unaffected by 19th July removal of restrictions.
 
Statistics identify that people aged between 20-29 have the highest infection rates for COVID. Vaccination in the UK is not compulsory for all. There is no general provision that an employer can rely upon at the time of writing to compel their staff, freelancers, contractors, or visitors to take up the vaccine. There is a potential conflict within the workplace where employees refuse to work together for fear of getting COVID from a colleague whose lifestyle choice has greater exposure to infection; potentially giving rise to risk without any outward sign in the case of being asymptomatic. Separating workers in this situation would be wise. Existing workplace control measures may be sufficient. Should an unvaccinated worker have to work with others closely then this may give rise to redeployment to other duties.
 
Care Homes and health workers have special circumstances and specific justification for insisting that employees are vaccinated. Following consultation and discussions regarding any viable alternative redeployment, an employee may find that an employer is compelled to dismiss the unvaccinated employee. A dismissal of this kind falls under the heading of a Some other substantial reason [SOSR] dismissal. This is a potentially fair reason for dismissal, however, the specific context, the reasonableness of the employer’s discussions, and ultimately, justification for dismissal would all be relevant considerations for an employment tribunal. Should specific legislation be passed in this area, likely to be on a sector by sector basis, dismissal would be potentially fair but we await any changes here.    

Regarding vaccination for Care Home workers, the requirement becomes law on 11th November 2021. The government has allowed a grace period of 16 weeks from the 22nd July to allow for vaccination to take place. This means 16th September is the last date for care workers to get their first jab so they are fully vaccinated before regulations come into force.

Government ministers have stated at this time they have no intention of creating legislation in relation to compulsory vaccines outside Care Homes with employers needing to assess their own circumstances. This does not rule out a policy of “no jab – no job” for a business that can justify a vaccine policy and consult with staff who may not be able to comply. 
 
Key Action Point: 
Review the workplace rules that have been in place over the last year, assess the protective measures in place, ensure that necessary measures are implemented. Communicate with staff about the purpose of the measures: why they are in place and when they will next be reviewed. Social relaxation of lockdown rules does not automatically equate to an abandoning of workplace safety measures. 

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.