Welcome to this month's briefing for HR teams and in-house employment counsel – bringing you this month’s employment law highlights in an easy-to-read package.

In the courts

Covert monitoring

Developments in smartphone technology mean it is increasingly easy for employees (or employers) to record internal grievance and disciplinary meetings. This is often done covertly, either because the employee genuinely wishes to have a verbatim record of what was said or, more worryingly, because they want to try to lure management into impromptu remarks that might aid future litigation. The Employment Appeal Tribunal has reviewed the law in this area, making the point that covert recording designed to obtain an unfair advantage or to entrap will usually amount to misconduct. Employers should consider setting out clear rules for recording in its staff handbook, reminding participants at the outset of each meeting of those rules, and including covert recording as an example of gross misconduct.

Data protection

Clients will be familiar with the new data protection regime introduced by the EU General Data Protection Regulation and the UK Data Protection Act 2018. One of the features of the new framework is the ability of regulators to impose substantially enhanced fines for data breaches. In an interesting decision, the Greek regulator has fined PwC €150,000 for using consent as a basis for processing employee data. Consent is almost never available as a fair processing basis for this type of data, because of the power imbalance inherent in most employment relationships. The maximum fine available under the GDPR is 4% of global turnover. The fine in this case was around 0.3%.

Using contractors from April 2020

We have noted in previous editions of this briefing that the rules governing the tax treatment of contractors operating through personal service companies are changing in April next year. Draft legislation has now been published, which has been summarised by our tax colleagues. The headlines for clients engaging contractors is that they will need to review as a matter of urgency whether their contractual terms need amendment to deal with (a) the gathering of information to determine a contractor’s proper status; (b) termination rights if status (and therefore the economics of the engagement) has changed; and (c) payment mechanisms if the engagement fee now needs to be taxed at source.

In the news

Menopause policies

Policies that cater for the specific needs of different groups of employee are becoming increasingly common. A cross-party group of MPs has called for women going through the menopause to be more fully catered for. Internal policies highlighting the particular challenges facing this group, and offering greater flexibility in working patterns, are the main points for employers to bear in mind if they decide to develop their offering in this area. Interestingly, a first-instance Employment Tribunal decision in Scotland has ruled that a menopausal woman whose symptoms were particularly severe was unfairly dismissed and discriminated against because of something arising from her disability. The case illustrates, perhaps, the extent to which this issue is gaining traction amongst employees and trade unions.