Data Protection: Honda and Flybe fined by ICO over marketing emails

In March, Honda was fined £13,000 and Flybe, £70,000, by the ICO after both organisations emailed their customers asking them to update their marketing preferences. Flybe’s error was to email people who had already refused, or withdrawn, their consent for email marketing; and Honda’s mistake was to email 300,000 customers whose marketing preferences were either incomplete or had never been recorded. The ICO ruled that emails sent for the purpose of updating marketing preferences still constitute marketing communications and therefore should only be sent to those people for whom organisations had specific consent to contact for marketing purposes. Therefore organisations should only send marketing emails to individuals who have consented to receive them. Those who have either withdrawn or refused consent, or where it is unknown if consent has been given, should not be sent marketing emails. If you are in any doubt about your data protection obligations, please contact our information governance team.

Gender pay gap government website launched

The government website where companies can record their gender pay gap information has been launched. As a reminder, voluntary, private and public sector employers with more than 250 employees must publish the following information by April 2018:

  • Median gender pay gap figures
  • Mean gender pay gap figures
  • Proportion of men and women in each quartile of the pay structure.
  • Gender pay gaps for any bonuses paid out during the year

Please get in touch with us if you need guidance on your reporting requirements.

Taylor Review: Zero hours contracts

Matthew Taylor is due to deliver his Independent Review of Employment Practices in the Modern Economy this summer. Apparently inspired by the example set by McDonald's, he will be recommending that employers should be required to offer employees on zero hours’ contracts the right to request a set number of hours, a recommendation supported by the CBI. When McDonald's conducted a pilot study in 23 of its restaurants, 20% of workers on zero hours contracts took up the option to transfer to fixed hours, suggesting that employers should not find Mr.Taylor’s recommendation onerous.

Employers encouraged to increase number of older workers

In line with the government’s commitment to increasing diversity in the workforce – and in answer to an anticipated 7.5m shortfall of workers by 2022 – companies are being encouraged to increase the number of employees aged over 50. To date, eight companies, including Barclays, Co-op and Boots, are taking part in a specific initiative to increase the number of over-50s they employ by 12%. Retaining and employing older workers may help to plug a skills gap which is likely to grow following both major parties’ commitment to decrease immigration rates substantially.

Case Law

Father wins sex discrimination claim over enhanced paternity pay

Ali v Capita Customer Management Limited

The Employment Tribunal upheld a father’s claim for direct sex discrimination after his employer refused to pay enhanced shared parental pay after he opted to take shared parental leave after his wife returned to work. In this case, Mr. Ali took his two weeks paternity leave and then applied for an additional 12 weeks, under shared parental leave, but on full pay. His employer refused his request on the grounds they were not obliged to offer enhanced shared parental pay. In his claim, Mr Ali argued that, apart from the two weeks compulsory maternity leave immediately after childbirth, other leave entitlements were not exclusive to either parent and, as his wife had returned to work directly after her compulsory leave, he was now the full-time carer for their daughter. The tribunal agreed, holding that it was only the 2 week compulsory maternity leave which was unique to women; the sex of the person looking after the baby during the remainder of the leave was irrelevant. Although this is a contrary ruling to the only other case of this type, Hextall v The Chief Constable of Leicester Police this decision does reflect the principle behind shared parental leave i.e. that both parents are equally responsible for looking after their children. Capita is likely to appeal the decision so we would not advise employers to amend their policies until, and unless, this ruling is upheld by the EAT.

Self-employed workers and paid leave

King v Sash Windows Workshop Limited

Another court case considering the vexed topic of holiday pay has been referred to Europe. Mr. King, a salesman for Sash Windows Workshop (SWWL), was on a commission-only contract that described him as self-employed and did not mention paid holidays which he took as unpaid leave. At one point, he declined the offer of an employee contract in favour of remaining self-employed. At the age of 65 his contract was terminated and he bought a claim for, among other things, unpaid holiday on the basis that he was a worker rather than self-employed. The Employment Tribunal upheld his claim that he was a worker, ruling that he should be paid for accrued, untaken leave in his final year, the leave he actually took while working for the company, and for leave he was entitled to take but had not taken. SWWL appealed the latter finding and the Employment Appeal Tribunal agreed, namely that a worker would have to take unpaid leave first before it could be established that they were entitled to be paid. Mr. King appealed this to the Court of Appeal which, in turn, referred the case to Europe. The Advocate General has decided in advance of the ECJ ruling that workers must be able to exercise the right to paid annual leave and that this right, an important principle of EU social law, was explicitly excluded from Mr King’s contract. This meant that he was entitled to be paid for holiday he did not take. We will report on the ECJ ruling in due course as this will impact existing self-employed contracts.

Defining a disability under the Equality Act 2010

Peninsula Business Services Ltd v. Baker

Mr Baker, an employment lawyer, worked for Peninsula Business Service Limited (Peninsula). He notified his employer that he was dyslexic, a claim supported by occupational health advice. He claimed that his dyslexia was a learning disability, a claim which was not accepted by Peninsula. After being suspected of moonlighting, Mr Baker was placed under surveillance which revealed that he had, in fact, been spending time with his mother when he should have been working. The fact that he had been under surveillance was revealed at a disciplinary meeting, following which Mr Baker went on sick leave, due to stress caused by, among other things, the surveillance. He subsequently brought a claim against Peninsula for disability harassment and victimisation, a claim upheld by the Employment Tribunal. Peninsula then appealed on the grounds that Mr Baker was not actually disabled under Equality Act 2010. The EAT agreed with Peninsula on the basis that individuals could not bring a claim just because they believed they were disabled – to do so would be contrary to the Equality Act. The victimisation claim was also dismissed on the grounds that the surveillance company (which had been accused of victimising Mr. Baker) knew nothing about Mr. Baker’s disability claims so could not have victimised him on those grounds. This case reinforces the fact that to bring a successful disability discrimination claim, an individual must establish their disability in accordance with the Act. Nonetheless, employers must remember that this is a sensitive area of the law and must be carefully navigated.