Dealing with DSARs

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

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

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. 

Spring Budget update

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

Furlough

• Extended to the 30^th 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 1^st 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.

Covid-19 Latest updates

Our latest updates and resources relating to coronavirus will be posted on our website – https://www.robbryanassociates.org.uk/2020/03/12/coronavirus/

Coronavirus – Advice for employers

For our most up to date information see our webpage – https://www.robbryanassociates.org.uk/2020/03/12/coronavirus/

With the government preparing for widespread cases of the coronavirus(Covid-19), employers should monitor the official advice to maintain an up to date picture of the situation and best protect the health and safety of their staff.

Where can I find the official advice?
Government list of guidance
Government advice for businesses
NHS advice
Government action plan

What can employers do to minimise the risk in the workplace?
ACAS has produced a useful guide providing practical advice to help employers protect their staff. Good hygiene is key to preventing the spread of infection.
We suggest that you print the NHS guide out and pin to your noticeboard or another prominent place. You should also issue regular memos to circulate the latest official advice.
The government guide has advice for what do if someone in the workplace falls ill with symptoms linked to the virus or is diagnosed.
Employers should prepare an action plan which is ready to be put in place should there be an outbreak of the virus at work.

Sick Pay
If an employee has coronavirus:
Your usual sickness procedure and entitlement apply.

If an employee is advised to self-isolate:
If the employee has been advised by NHS111 or a doctor to self-isolate they should inform their employer immediately. If they are given written notice they are entitled to sick pay. The latest legal advice as of yesterday is that isolation without the illness does not qualify for SSP – although many are saying it would be good practice to pay. The Trade unions and others are seeking specific emergency laws to have a sick pay fund for those who wouldn’t normally be paid – they argue without this people will be motivated to attend the workplace with symptoms.
Some employees will be able to work from home while in isolation.

Latest news update Workers to get SSP from first day off https://www.bbc.co.uk/news/uk-51738837 (NB: this is the government’s intention – we await further detail)

Working from home
At present, there is no advice for workers to avoid travel in the UK but employers may want to consider in advance what provision there may be for working at home.

Travel abroad
As and when the virus becomes widespread, in some places travel and movements are likely to be more restricted.
If travel is for business purposes, consider if the meeting could take place via video conferencing instead.
If an employee is travelling for leisure we advise you to discuss with the employee their plans and pose the question regarding returning and self-isolation. You can agree in advance that should they need to self-isolate it would be unpaid authorised absence. It’s then an elective choice to go on holiday taking a risk or to cancel.

The Christmas Party

It’s the season to be merry and jolly and that means a word of warning from your HR advisors about the company Christmas party.

It’s advisable to issue a statement to employees in advance of a Christmas party or similar work-related event reminding employees of conduct matters, including the dangers of excess alcohol consumption, and behaviours that could be viewed as harassment. It would be wise to remind your employees that whilst the event is intended to be fun, it is an extension of the workplace and similar rules will apply.

The Equality Act 2010 makes employers liable for acts of discrimination, harassment and victimisation carried out by their employees in the course of employment, unless they can show that they took reasonable steps to prevent such acts.

In October 2018, a recruitment company was held vicariously liable for the actions of its boss when he punched a colleague on a Christmas night out. In Bellman v Northampton Recruitment, a “significantly inebriated” managing director caused a sales manager brain damage at a post-party drinks gathering. The ruling is of interest because technically the incident did not occur at the company event. However, because of the seniority of the staff member, the fact he was asserting his authority, and that the company had paid for alcohol and the taxis to the after-party, there was a strong enough link for vicarious liability.

Our advice is to plan your party carefully and remind all those attending of expected standards of behaviour. Employees can be disciplined for misconduct after a Christmas party if the incident is sufficiently closely connected to work to have had an impact on the working situation.

In Gimson v Display By Design Ltd, the employer was found to have fairly dismissed an employee for a brawl after the end of a Christmas party. However, you need to be careful where more than one employee is involved in the same incident. Where the circumstances are truly parallel, employees must generally be treated the same. Establishing “who is to blame”, however, can be difficult where memories are blurred by alcohol and the evidence is unclear. In Westlake v ZSL London Zoo, two zoo keepers got into a fight at London Zoo’s Christmas party as a result of which Ms Westlake was dismissed and the other zoo keeper, Ms Sanders, was issued with a final written warning. Given the lack of clear evidence as to who started the fight, the employment tribunal found Ms Westlake’s dismissal to be unfair. The tribunal observed that the employer could have legitimately dismissed them both or issued both with final written warnings.

Another issue that often crops up is what if an employee fails to come to work or arrives late the day after the Christmas party? If disciplinary action is to be taken for lateness or non-attendance after the Christmas party, employers should ensure that staff are informed that this is a possibility in the advance statement or company work events policy. Where an employee does not attend due to illness, the employer should follow its attendance management policy and procedures.

If you would like advice on your employee policies please get in touch www.robbryanassociates.org.uk/  01462 732444

Spoilsports?

It’s the summer which means it’s a peak time for sports tournaments – whether it’s the football world cup, Wimbledon, the Olympics or many other major events; your employees may be keen to keep up with the action.

But how can employers maintain productivity without being kill-joys? Can you boost morale by allowing staff to participate?

A Flexible Approach

• One way to facilitate employees following major tournaments is to allow games/events to be screened or listened to in the work place if your type of business allows. Remember not all employees will be fans so consider a sport free zone as well.
• Allow employees to start or finish earlier or work later to fit in around key events.
• Consider your internet/social media/mobile phone policy – can this be relaxed to allow employees to follow the action?

Annual Leave Requests

• More organised fans may have already requested time off but in the case of knock out competitions as teams progress to the next round you may get a flurry of leave requests. Follow your usual policy and be fair and consistent in how requests are granted.

Absence

• An employee calls in sick or fails to arrive on the day of the big game? Follow your usual procedures.

Hungover Staff

• Sport and a few drinks often go hand in hand. But what if your employees are turning up for work in an unfit state? Again, your usual policy should be followed. You should also have a policy in place regarding drinking during working hours.

And as we head to the finish line…

• Don’t forget it’s not all about UK sports. You may have staff supporting a number of different countries so make sure any flexible arrangements include them as well.
• Some people hate sport! Avoid them becoming resentful by being open in your communications and not allowing them to have an increased work load due to others taking advantage of a flexible working approach.

If you need advice on developing or implementing your workplace policies RBA would be pleased to hear from you.

Rob Bryan Associates Limited Main Office: 01462 732444 www.robbryanassociates.org.uk

A Burning Issue

So what has a pineapple wearing sunglasses and a hat got to do with your business?

Today (27^th June 2019) is ‘International Sunglasses Day’; raising awareness of the damage that can be done to the eyes by the sun’s harmful rays.

Still wondering?… We’re talking about sun safety. With cases of skin cancer on the rise in the UK (since the early 1990’s incidence rates have more than doubled) consideration needs to be given to the risks of sun damage associated with outdoor working. This could particularly affect workers in construction, agriculture or leisure. Research has shown that 55% of skin cancer incidences are from those employed in the construction industry.

Some groups are particularly at risk:

• Pale or freckled skin that tends to burn
• Fair/red hair
• Skin prone to moles
• Family history of skin cancer

Although the risk is lower for those with darker skin, sun damage can still occur, along with the same need to avoid dehydration and heat exhaustion.

According to Cancer Research 86% of Melanoma skin cancer cases are preventable.

What can employers do?

• Educate – make sure your employees know that sun exposure can lead to skin cancer and what they can do to minimize the risks. Encourage them to check their skin regularly and report any concerns to their doctor. This can be part of your health and safety training.
• Provide shaded space to take breaks
• During particularly hot and sunny periods schedule work to avoid the midday sun / have more frequent rest breaks
• Encourage workers to keep covered up and wear a hat.
• Encourage workers to wear a high factor suncream and reapply during the day
• Make sure water is available

For advice on all your employment matters contact Rob Bryan Associates – 01462 732444 / www.robbryanassociates.org.uk

More summer advice:

Heat Wave Hot Tips

Carers Week

10^th-17^th June is Carers Week, raising awareness of the challenges carers face day to day.

Research by Carers UK shows that 600 people a day leave the workforce to provide care for a loved one. 5 million people juggle caring responsibilities with paid work. And the numbers are increasing.

Those in their thirties to fifties, known as the ‘sandwich generation’ may be balancing caring for elderly parents while also bringing up children and working.

How carer-friendly is your business? Do you have policies in place to support those who wish to more flexibly?

Carers who meet the qualifying criteria can make a request for flexible working and can also ask for ‘time off for dependants’ to cover an emergency or unforeseen circumstances. It is at the discretion of the employer whether this time off is paid or unpaid. Some employers offer further support such as carers leave or flexible leave situations when a more intensive period of care is required. Even simple adjustments such as allowing an employee to make a phone call can make a big difference to their ability to be in work.

If you would like help reviewing your employment policies please get in touch – 01462 732444