HR Matters - Summer 2017

Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment Introduction Jeanette Wheeler Crystal Ball Gazing Clare Hedges Aspiring to Pay Equality Abigail Trencher The rise (and fall?) of the 'gig economy' Catherine Johnson Investigations: it's all in the planning Lorna Townsend Trial by Google? Kevin Palmer GDPR: the countdown to compliance Kitty Rosser When enough is enough: Dismissing for long-term sickness absence Tom Sharpe IN THIS ISSUE HR Matters WELCOME TO THE SUMMER 2017 ISSUE OF This time last year the country was about to go to the polls in the EU referendum. Twelve months on, Article 50 notification has been given and we are now facing another General Election. The longer-term prospects for employment law are still uncertain, but the impact of Brexit on immigration is already being felt. We consider the prospects for future immigration policy. An issue repeatedly hitting the headlines in recent months concerns the age-old question of employment status, and this looks set to continue for the foreseeable future with the outcome of the independent Taylor review keenly awaited this summer. The only consensus so far is that 'something' must be done to resolve the issue. We review the current position and what it means for employers. In addition we look at: the practicalities of gender pay gap reporting; what you need to know about the new General Data Protection Regulation; the publication of tribunal decisions online; preparing for investigations, and dealing with long-term sickness absence. We hope to see you at our annual employment conference, taking place at a new venue this year: Wherstead Park (near Ipswich) on Thursday 12 October 2017. Delegates at last year's event described it as “enjoyable and extremely informative”, “insightful” and “remarkably good value”. Booking details are available on our website: www.birketts.co.uk/events/ I hope you enjoy reading this edition of HR Matters and would very much welcome your feedback. Jeanette Wheeler Welcome to the summer 2017 edition of HR Matters, in which lawyers from across our four offices share their expertise and insight on a range of topical employment and immigration issues. Jeanette Wheeler Partner and Head of Employment Team 01603 756427 [email protected] 2 HR Matte r s S U M M E R 2 0 1 7 Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment Crystal Ball Gazing So what will our immigration system look like after Brexit? The reality is that nobody knows. However, we can make some educated guesses based on current government policy. The Government remains committed to reducing net migration to the tens of thousands and maintains this cannot be done until they have control over immigration from Europe. Meanwhile other EU leaders have asserted that access to the free market for goods and services is only possible in conjunction with free movement of people. It remains to be seen what price will be paid for any future trade deal. Theresa May has stated that no deal is better than a bad deal but this may just be an example of the posturing that goes on at the start of any negotiation. There has already been a slight softening of her approach as she has acknowledged that whatever happens there will need to be a transition period to help business adjust to any new arrangements. This has reduced fears of a “cliff edge” in immigration policy. There is currently a large amount of consultation and lobbying about what the new rules for EU nationals should look like. The most obvious change would be a restriction on EU nationals seeking work in the UK. Currently 57% of workers arrive with a job, but the other 43% only find work once they are here. Recent BEIS consultation has focused on whether EU migrants should be required to have firm job offer before coming to the UK. This would change how employers recruit EU nationals, requiring more planning and slowing down recruitment. The government recognises the need for highly skilled EU workers. The challenge is at the lower end of the skills spectrum. However we believe that business will be able to make the case for a range of workers, for example in the agricultural, food production and construction sectors. For the government to exert control, we expect that even if jobseekers are allowed to enter the UK, they will need a permit before they start work. This could fit within Tier 3 of the Points Based System, which is currently closed. It might work like Tier 2, where individual employers are required to maintain sponsor licences, or like the government authorised exchange schemes within Tier 5, where there is an overarching sponsor. The government will probably prefer to deal with designated industry bodies rather than numerous employers. If so, to address concerns of abuse and high charges, they may need to specify a permitted fee structure as is the case with Tier 1 Exceptional Talent endorsements. Whatever happens, the Government is unlikely to achieve its goal simply by restricting immigration from Europe. Firstly, net migration figures include British nationals returning to the UK after spending more than a year abroad. Even if large numbers of disenchanted EU nationals leave the UK, the Government will need to factor in returning British expats. Furthermore, if EU nationals are restricted from coming to the UK, the quid pro quo is that British nationals will be restricted from moving to the EU. We expect any deal with Europe will be based on reciprocity. However, this is not entirely straightforward. The UK already has reciprocal arrangements with certain countries in respect of the Tier 5 Youth Mobility Scheme. This works as a straight swap of agreed numbers of young people. Europe is more complicated, because a large percentage of British expats are retirees, whereas the EU nationals we welcome are predominantly students and younger workers, so reciprocity would not be on a like for like basis. There are also other elements that require negotiation, including student tuition fees and portability of pensions. Secondly, there are in fact more non-EU migrants than EU migrants who come to the UK each year. The Government has always had control over the rules for non-EU immigration and has still not achieved a significant reduction in those numbers. Several countries including India and Australia have already indicated that they will seek visa concessions as part of any trade deal. Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment 3 HR Matte r s S U M M E R 2 0 1 7 In April 2017 an immigration skills charge was implemented, to incentivise Tier 2 sponsors to train and recruit local workers rather than migrants and to generate more funds for apprenticeships. It remains to be seen what impact this will have, particularly on intracompany transfers within the IT sector, which make up the greatest proportion of Tier 2 visas. We expect the Government will take time to observe and consider the effects of these latest changes before deciding what to do next. However following this trend we consider employers making the case for sponsorship in future will need to show greater commitment to training and it would be prudent to start considering now how you can use apprenticeships. If you would like to discuss how you can future-proof your particular business, please speak to Clare Hedges in our Immigration Team. Aspiring to pay equality The Gender Pay Gap Reporting Regulations1 (GPR) are now in force, requiring employers with more than 250 employees at the ‘snapshot’ date to publish information regarding their gender pay gap. The snapshot date and publishing deadline for employers in the private and voluntary sector are 5 April 2017 and 4 April 2018 respectively (and all subsequent anniversaries) and for public sector employers, 31 March 2017 and 30 March 2018 respectively (and all subsequent anniversaries). Aim Whilst employment law commonly provides rights and protects freedoms, the GPR does no such thing – it merely requires employers to prepare and publish statistics on their gender pay gap in the hope that it will achieve what equal pay legislation has failed to do in 47 years: parity of pay between men and women. This is a tall order. There is no mechanism under the GPR to scrutinise published statistics and no clear enforcement mechanism for non-compliance. The Government is relying upon the Equal and Human Rights Commission (EHRC) to enforce the GPR using its powers under the Equality Act 2010. Even if EHRC has such powers (which some have questioned), it lacks the resources to police and enforce compliance effectively.The GPR is therefore a shining beacon of aspirational law, hoping to bring about societal change without legal obligation. Many studies address the issues that perpetuate disparity of pay and why women are underrepresented within higher echelons of organisations. These include discrimination and unequal unpaid caring responsibilities. These could be alleviated by making it easier for women to question parity of pay rather than abolishing 1 The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 and The Equality Act 2010 (specific Duties and Public Authorities) Regulations 2017 Clare Hedges Senior Associate 01223 326605 [email protected] Abigail Trencher Partner 01223 3266220 [email protected] The Gender Pay Gap Reporting Regulations (GPR) are now in force, requiring employers with more than 250 employees at the ‘snapshot’ date to publish information regarding their gender pay gap. 4 HR Matte r s S U M M E R 2 0 1 7 Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment HR Matte r s Equal Pay questionnaires, and introducing measures to encourage men to take shared parental leave and shoulder a larger share of caring responsibilities. Nonetheless, the GPR will cast a spotlight on the pay demographics of organisations and enable employers to identify where imbalances lie. In a time of skills shortages, where females are striding ahead of males in educational achievement2 and Brexit may lead to labour shortages, employers need to optimise the workforce available and recruit, retain, nurture and effectively use female workers. So let’s embrace this toothless aspiration and try and change the world! Implementation By the publishing date employers will need to prepare and publish: • Mean and median gender pay gap. • Proportion of men and women in quartile pay bands. • Mean and median gender bonus gap. • Proportion of male and female employees who received a bonus. There are some sticky issues that will need to be grappled with, not least the calculations to be applied, but other key issues include: Which employees are included: Employers will need to consider which employees/workers will count towards the 250+ threshold. It will cover employees and those who provide personal services – which may include casual and zero hour employees working at the snapshot date and self-employed contractors. It will not include agency workers or contractors supplied through personal service companies, or partners in a partnership. What dates apply: It is unhelpful that different snapshot and publishing dates apply to private and voluntary sector employers than public bodies. Some employers will need to establish which one applies. For example, independent and private schools will be in the private and voluntary sector, whereas academies and maintained schools as public bodies have the earlier dates. Employees on full pay: Employers will need to study payroll data and eliminate those who were not earning full pay during 2 http://gender.bitc.org.uk/all-resources/factsheets/women-and-work-facts cites females as currently making up 47% of the UK workforce, 63.6% of students who achieve 5 or more GCSEs at grade A* to C or equivalent, 57% of those with first degrees and 50% of apprentices. 3 https://www2.deloitte.com/uk/en/pages/press-releases/articles/deloitte-analysis-without-action-gender-pay-gap.html the relevant pay period, for reasons of sick, annual, family and special leave. This may take time but avoids skewing the figures. It will also lead to difficulties as to how to treat those who, whilst on long term leave ( for family related or health reasons), continue to be paid normal pay but receive reduced bonus or commission payments. These difficulties are likely to lead to inconsistent data across different employers. Hours of work: It will take time to apply the calculations across various different work patterns employers may operate, particularly those with variable hours for whom it will be necessary to average the hours worked over the 12 weeks ending with last week of the relevant pay period. If this is not possible employers can base their hours on that of a comparable employee. Whilst paid overtime hours (and pay) are to be excluded, unpaid overtime hours can be included, enabling employers to disguise high pay of senior executives by applying it to long hours of work. What is pay: It includes basic pay, bonuses, commission, all allowances, pay for leave and shift premia received during and which relate to the relevant pay period. It will not include overtime pay, termination payments or non-cash benefits. So the car allowance paid to one employee will count, but if another elected to have a company car that benefit will not count – causing a disparity of pay. Similarly, if one employee received an on-call allowance during the relevant pay period, but another didn’t due to how the rota fell. Likewise for any bonuses awarded in the relevant pay period. Whilst there are bound to be more issues that arise as employers implement the GPR, the inability of any mechanism to audit and scrutinise final data should give comfort to employers. Provided they try their best and publish by the dates given, no action will ensue. Only time will tell if the GPR serves any purpose and achieves its ambitions. We can only live in hope that it will close the gender pay gap before 2069!3 Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment 5 HR Matte r s S U M M E R 2 0 1 7 Catherine Johnson Partner 01473 299174 [email protected] The rise (and fall?) of the ‘gig economy’ The gig economy has created a new working model that is blurring the ‘worker’ and ‘selfemployed’ boundaries. Media coverage of recent employment tribunal claims has thrust this controversial and complex area of law into the media spotlight. However, the crucial question is whether this new form of working is here to stay? The gig economy is a convenient label used to describe a market characterised by shortterm and unpredictable working patterns, as opposed to permanent positions. Workers are paid for the jobs (or ‘gigs’) that they undertake rather than being paid a guaranteed wage for fixed hours of work. Despite the popular usage of the term, the exact nature of each job will vary between organisations. This catch-all phrase therefore leads to confusion and uncertainty on the part of both workers and employers over which employment rights properly apply to the individuals concerned. Who forms the gig economy? In the UK, approximately 1.3million people are engaged in ‘gig work’ according to new research by the CIPD1 . This is estimated to be 4% of UK working adults aged between 18 and 70. The research indicates that 14% of those surveyed did gig work because they were unable to find alternative employment and only 25% used it as their main source of income, suggesting that most people use the gig economy to boost their income. How does this affect employment status? Questions of employment status have always been somewhat esoteric but the rise of the gig economy has muddied the waters further. Demand for an ad-hoc workforce, who work ‘if and when’ required, has increased in recent years due to the rapid uptake of smart phone technology and need for a quick and efficient service to meet customer demands driven by app-based technology. This is supported by a significant increase in selfemployment figures. However, the specific working arrangements that employers impose in practice often result in many independent contractors inadvertently attracting worker status, accruing costly rights such as holiday pay and other benefits. Flexibility versus necessity Businesses in certain sectors (particularly transport, hospitality and care services) depend on an agile workforce consisting of independent contractors that can be available quickly and at various times of the day. 1 To gig or not to gig? Stories from the modern economy (CIPD, 17.3.17) 6 HR Matte r s S U M M E R 2 0 1 7 Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment Although this type of working is a requisite to the success of these businesses, it comes at a price to the independent contractors. Their ability to work for more than one company may be limited and their ‘self-employed’ status prevents them from attracting the benefits that UK employment law affords ‘workers’, and the security of being an ‘employee’. The media (and trades unions) focus on these disadvantages of working within the gig economy and suggest that most independent workers are fighting to gain ‘worker’ status to entitle them to the associated benefits. Some independent contractors, however, prefer to remain self-employed as it is beneficial to them for a variety of factors, including the ability to work when it suits them and the associated tax advantages. It is important to be aware that many independent contractors are content with their status due to the autonomy and flexibility it attracts regardless of the apparent loss of benefits. Direction of travel in recent case law The worker versus self-employed status question is not a new debate. However, recent case law has dominated media headlines and has forced employers to consider the potential implications to their businesses. We briefly summarise three key recent decisions below: Aslam and others v Uber BV and others (ET/2202550/15) Several drivers at Uber were held by the employment tribunal to be workers, not self-employed contractors, on the basis that Uber exerted sufficient control over the drivers to satisfy the test for ‘worker’ status. Once the drivers were signed into the Uber app, they were regarded as being ‘on duty’ and available to accept bookings. Drivers are also subject to a rating system which, if it drops below a minimum level, means their access to the app is withdrawn. This was all suggestive of them being workers. This decision is now being appealed to the EAT. Dewhurst v CitySprint (ET/220512/2016) The employment tribunal found in favour of the claimant, holding that she was entitled to the benefits of worker status. As in the Uber decision, it was made on the basis of the level of control 2 The ‘Gig’ economy: an OTS focus paper (OTS, 2.12.16) 3 Independent Review of Employment Practices in the Modern Economy, launched 30.11.16 4 Self-employment and the gig economy, launched 1.12.16 5 Independent, 14.02.17 exercised by the business and the individual’s lack of autonomy. However, the Employment Judge did stress that the decision was made on the claimant’s facts and would not automatically apply to others working under similar arrangements. Pimlico Plumbers Ltd and Mullins v Smith ([2017] EWCA Civ 51) In another largely fact-sensitive decision, the Court of Appeal upheld the employment tribunal and the EAT decision that the plumber was a worker, despite the plumber’s contract labelling him as an independent contractor. The decision was based on the requirement for the plumber to provide a personal service and because he was sufficiently integrated within the business. A common factor in these decisions is that the working arrangements were all documented as ‘self-employment’, but the courts looked beyond this to consider the reality of the relationship between the parties. Decisions on employment status turn on the facts of each case and therefore it is necessary to examine the individual’s day-to-day tasks alongside the contractual documentation to decipher the nature of their employment status. Government’s position It has been reported that the booming gig economy is costing the Government £4billion a year in lost tax income. As a result, the Office of Tax Simplification has recently released a focus paper2 to raise some of the tax issues and implications arising from the gig economy and BEIS launched an Independent Review3 led by Matthew Taylor, which is expected to conclude in June 2017. An inquiry4 by the Commons Work and Pensions Select Committee, curtailed due to the General Election, calls for the closure of existing loopholes allowing ‘bogus’ self-employment. The Government’s future intentions are clear from the attempt to increase National Insurance Contributions for self-employed contractors in the 2017 Spring Budget. Although reversed shortly afterwards, Greg Marsh (a panel member for the Taylor Review) has previously indicated that the issue of tax loopholes would not be ignored5 and is therefore likely to be addressed in the final report. However, in a mid-Brexit UK with increasing inflation, the Government will be wary of making hasty decisions. Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment 7 HR Matte r s S U M M E R 2 0 1 7 Taking on a self-employed worker rather than a full time employee is considerably cheaper for employers and the corollary of decreasing the numbers of self-employed could be an increase in the unemployment figures, which will be politically disastrous. Advice to employers This issue is not going away. Some decisions will certainly be appealed and there are several other employment status cases in the pipeline. What is clear is that employers will not be able to hide behind artificial classifications in contracts and decisions will be made based on the reality of the working arrangements. Checklist: Are your independent contractors workers? ˔ Do you insist that your contractors wear a uniform? ˔ Are they (in practice) obliged to accept work from you? ˔ Do you pay them through a PAYE system? ˔ How much control do you have over the way they do their work? ˔ Do you include your contractors in company-wide emails? Social events? ˔ Do you follow your disciplinary policy with your contractors? ˔ Are your contractors in a managerial role where they supervise employees? ˔ Do they have the right to substitute another to do the work? What is a worker legally entitled to? • The right to receive the national minimum wage; • The right not to suffer unlawful deductions; • The right to accrue and take 28 days’ paid annual leave per year; • Weekly working limits and rest breaks under the Working Time Regulations; • Eligibility for pension auto-enrolment; • Protection from discrimination and in respect of protected disclosures. What is a worker legally entitled to? • The right to receive the national minimum wage; • The right not to suffer unlawful deductions; • The right to accrue and take 28 days’ paid annual leave per year; • Weekly working limits and rest breaks under the Working Time Regulations; • Eligibility for pension auto-enrolment; • Protection from discrimination and in respect of protected disclosures. 8 HR Matte r s S U M M E R 2 0 1 7 Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment Investigations: it’s all in the planning A good investigation requires thought and planning, elements that are often overlooked in the rush to get things underway. The temptation to ‘plunge in’ should be avoided in order that careful thought can be given to a number of key issues, including the crucial question of who will be appointed to conduct the investigation. Once the investigator has been appointed, they will need to consider some important practical points before embarking on the investigation. Set out below are some of the key considerations at each of these stages. This is followed by a reminder of the need for follow-up once the investigation is complete. Initial planning • Terms of reference: consider whether terms of reference need to be drawn up, setting out clearly the matters to be investigated, and the role and responsibilities of the investigator. Bear in mind that the terms of reference may need to be amended during the course of the investigation. • Policies and procedures: the need to review relevant policies and procedures may sound like an obvious one, but it is often overlooked at this early stage. Check in particular any specified timescales. If the timescale set out is unrealistic in the circumstances (as is often the case), inform the relevant parties, and provide a best estimate of a realistic timeframe, updating them as necessary as matters proceed. • The investigator: deciding who will conduct the investigation will involve consideration of a number of factors, including: ■ the level of complexity of the matter ■ which individuals may be needed at later stages (such as disciplinary hearings and appeals) ■ who has the requisite training, skills and personal attributes ■ whether the person identified as appropriate has sufficient capacity ■ whether the appointment of an independent external investigator is desirable Issues for the investigator • Organisation: investigations can involve numerous witness statements and copious amounts of documents. In order to keep on top of the process, it is essential that they are organised into an appropriate filing system from the outset. • Witness interviews: consideration needs to be given at an early stage to whether a note-taker is required, or whether the interview will be recorded. If using a note-taker, ensure that it is someone with the requisite skills for the job. • Confidentiality: ensure that appropriate warnings are given to witnesses regarding the need for confidentiality. It may be necessary to inform them of potential disciplinary action in the event that confidentiality is not maintained. Lorna Townsend Investigations and Employee Relations Consultant 01603 756437 [email protected] Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment 9 HR Matte r s S U M M E R 2 0 1 7 Follow-up An investigation report might conclude with recommendations, for example, training requirements or amendments to policies and procedures. It is essential that these are followed up, with clear direction as to who is responsible for what. Employment tribunals do not take kindly to failures to employers’ failings in this regard. Trial by Google? In February 2017, with very little fanfare, the Ministry of Justice (MoJ) launched its new publically-accessible online database of employment tribunal (ET) decisions (www.gov.uk/employment-tribunal-decisions). The database includes all new ET judgments handed down in England, Scotland and Wales as well as some older decisions dating back as far as 2013. Prior to this, copies of ET decisions were archived (English decisions located in Bury St Edmunds) and accessible only by written request or in person for a fee. The online database was created in the interests of open justice, making judgments more accessible to the public. It is possible to search the database by the name of the claimant, respondent, Judge or any other party involved. A decision may also appear in results generated by a search of a respondent’s business name using a search engine. The availability of fully searchable, online ET judgments therefore has potentially some significant implications for both employers and employees who are contemplating the prospect of ET litigation. The online database of ET decisions is likely in due course to attract interest from the media, particularly any media based locally to the respondent organisation. As yet however it is perhaps too early to assess whether this will be the case. There may be an increased risk of adverse publicity for both parties, regardless of whether or not the claimant ultimately succeeds in their claim. It may have a particularly detrimental effect on a respondent who loses badly in the tribunal and who is subject to express criticism by the Judge. Such criticism in the Judgment is not uncommon. It will be interesting to see whether, as a result of the greater accessibility to their judgments, Judges are more guarded in their criticism. As an Employment Judge I am not sure it should affect my drafting. For certain employers possibility of reputational risk will be an additional factor in considering whether to proceed with a claim. If settlement is either not desirable or unachievable, some respondents (depending on the nature of the case) might be advised to take a proactive approach and use public relations specialists to manage and respond to any negative publicity. Kevin Palmer Partner 01245 211254 [email protected] 1 0 HR Matte r s S U M M E R 2 0 1 7 Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment The prospect of sensitive evidence being in the public arena might mean that we start to see more applications for restricted reporting orders (RROs) although I am not sure Judges will be influenced by this new development to grant them more readily. One possible advantage of this new facility is that it will allow advocates in a case to review previous judgments handed down by the same Employment Judge, which might give them a useful steer on how to formulate their submissions. Kevin Palmer sits as an Employment Judge in the South East Region. Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment 1 1 HR Matte r s S U M M E R 2 0 1 7 GDPR: The Countdown to Compliance On 25 May 2018 the General Data Protection Regulation (GDPR) comes into effect bringing about the biggest change to data protection laws in over 20 years. So significant are the changes introduced by the new law that organisations have been given a two year lead-in period to ensure that they have sufficient time to bring their processes and systems in line with the new requirements before the 2018 deadline. However, many have been slow to appreciate the extent of the work required to update their compliance strategies and many more put their plans on hold in the light of the Brexit vote. With just one year to go, and clear confirmation that the GDPR will apply regardless of Brexit, organisations are now finding themselves on the back foot. With increasing media coverage driven by the threat of a headline-grabbing €20million cap on fines, awareness that there is change on the horizon is growing yet many organisations remain unsure of what they should actually be doing to prepare for the impending changes. For some, the GDPR has become the elephant in the room. We have prepared this compliance step-by-step plan to assist those who want to know what the GDPR actually requires in practical terms: Kitty Rosser Associate 01603 756559 [email protected] ...awareness that there is change on the horizon is growing yet many organisations remain unsure of what they should actually be doing to prepare for the impending changes. For some, the GDPR has become the elephant in the room. 1. Pick your project team – the work needed to ensure compliance with the GDPR is onerous, time consuming and requires knowledge of every part of the business so try not to put all the responsibility on one person. Ideally your project team should include representatives from marketing, HR, customer services and IT. 2. Audit your data – to achieve compliance you need to know what data you hold, where it comes from, what you do with it, where you keep it, who you share it with and what happens to it when it is no longer needed. 3. Update your fair processing notices – whether you refer to them as FPNs, privacy policies, data protection statements or something else entirely, the information that you give to individuals when you collect their data will need to be updated to meet the new information standards in the GDPR. 1 2 HR Matte r s S U M M E R 2 0 1 7 Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment 4. Review your consent mechanisms – under the GDPR you must meet a higher standard of consent and record how and when consent was obtained, all of which will require some updating to your current systems. Think about whether you actually need to get consent for a particular processing activity at all; remember that there are plenty of other legal grounds for processing such as contractual necessity and legitimate interests on which you may be better relying instead. 5. Streamline your SAR process - the GDPR reduces the time for providing a response to a Subject Access Request from 40 days to one month (and abolishes the £10 fee).Don’t forget the new rights - individuals have new rights under the GDPR, specifically the right to be forgotten and the right to data portability. You will need to ensure you understand what these rights involve and how you will comply with them. 6. Record your processing - from May 2018 you will no longer have to register with the ICO but you must keep a written record of your processing activities, security measures and data retention practices instead. 7. Review your contracts – if you appoint someone to undertake data processing on your behalf (e.g. outsourcing payroll) you will need to have written contracts in place containing certain prescribed clauses. Don’t overlook the international data transfer requirements if your data processor is based, or uses servers located, outside of the EEA. 8. Appoint a Data Protection Officer – for many organisations this will be a mandatory requirement under the GDPR. 9. Update your breach procedures – from May 2018 mandatory breach reporting will begin – most breaches must be notified to the ICO within 72 hours and you must keep a full internal breach register. 10.Be designed to comply – the GDPR introduces the concept of data protection by design. You need to ensure you are familiar with the concept and understand what it means for your business in practice. 11.Train your staff – staff awareness is absolutely crucial to compliance. Different staff members will require different training depending upon their role and responsibilities but all staff will require some basic awareness training around the GDPR at the very least. Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment 1 3 HR Matte r s S U M M E R 2 0 1 7 If you would like full details of the changes introduced by the GDPR please email [email protected] to a request a copy of our free GDPR Compliance Guide. We offer a range of training courses to help your business comply with data protection laws and to raise awareness amongst your staff. Details of our training courses are available on our website: www.birketts.co.uk/services-for-business/training-shapingexcellence.aspx If none of our standard courses offer quite the right fit for your organisation we are happy to create a bespoke training session for you. 1 4 HR Matte r s S U M M E R 2 0 1 7 Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment When enough is enough: Dismissing for long-term sickness absence A recent Court of Appeal decision (O’Brien v Bolton St Catherine’s Academy) highlights the fine balancing exercise to be carried out by employers when reaching a decision to dismiss an employee on long-term sick leave. Ms O’Brien, a teacher, was off sick with stress, depression and post-traumatic stress disorder for over a year following an attack by a pupil and what she regarded as the school’s failure to deal adequately with aggressive students. The school sought to establish Ms O’Brien’s prognosis and discuss any reasonable adjustments it could make to facilitate her return to work, but concluded that a return was unlikely in the near term. She was dismissed following a formal medical incapacity hearing. The decision was confirmed after an internal appeal, despite Ms O’Brien presenting a fit note from her GP indicating that she could return to work. Ms O’Brien’s claims for disability discrimination and unfair dismissal were upheld by an employment tribunal, but this decision was overturned by the EAT. It held that the employer could not be expected to cope with Ms O’Brien’s absence any longer and was therefore entitled to dismiss her. The Court of Appeal, by a majority (acknowledging the case to be ‘near the borderline’), restored the original decision of the employment tribunal that the dismissal was unfair and amounted to discrimination arising from disability. Once the school had received the new fit note, it should have waited ‘a little longer’ and sought further medical evidence before it confirmed the decision to dismiss. The dissenting judge disagreed, finding that the school was entitled to conclude that ‘enough was enough’ after such a long absence. The Court’s judgment provides some useful guidance for employers dealing with employees on long-term sick leave: • It is not necessarily unfair for an employer to dismiss an employee who has been absent for over 12 months with no certainty as to when he or she will be able to return. • The severity of the impact on the employer of an employee’s continued absence must be a significant element in deciding whether dismissal is justified. • The decision to dismiss must be fair on the basis of the information available at the time of the appeal, including any updated medical evidence. This decision reiterates the need for employers to take into account up to date medical evidence before dismissing an individual on long-term sickness absence. Following a formal absence management procedure is critical to dealing fairly with sickness absence, but it can be difficult to know what adjustments and allowances should be made for disabled employees. This is something that we will be looking at in our forthcoming series of Early Birds seminars, commencing in June 2017. Book your free place now: http://www.birketts.co.uk/events/ Tom Sharpe Senior Associate 01603 756494 [email protected] Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment 1 5 HR Matte r s S U M M E R 2 0 1 7 Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment HR Boss Our on-line portal providing the HR professional with access to template letters, guidance notes, FAQs and much, much more. 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