General Data Protection Regulation

A huge shake up to data protection laws, the General Data Protection Regulation (GDPR), is set to come into force on 25 May 2018.  This increases requirements on organisations relating to the processing of special categories of personal data covering race, political opinion, religion, trade union membership, health, sexuality and convictions.  The GDPR also increases the rights of those who are subjected to data processing and places additional restrictions and requirements on those who process data.

This means that organisations will need to review how they currently process employee data, including their legal basis for processing. In most cases, it is likely that obtaining employee general consent for processing personal data will be insufficient, as this needs to be specific, informed and unambiguous, and employees should be able to withdraw consent at any time. Penalties for failing to comply with the new data protection obligations are also to be significantly increased.

The GDPR does allow organisations to process special categories of personal data to meet their obligations under employment law without consent if they have a policy document in place regarding this processing. Similarly, organisations can also process data on criminal convictions, such as through carrying out background checks, to meet their legal obligations where a policy document is in place. Within these policies, the organisation will need to clearly demonstrate how it will protect this data when processing it.

Employment Tribunal Numbers Rise

The first set of employment tribunal statistics since the abolition of fees has been published and show, as could be expected, a rise in claims.  The figures for the period of July-September 2017 show an immediate significant jump in the number of claims made in the first full month where no fee was payable, compared with July 2017, where fees were still in place for almost the entire month. In July, 1,358 claims were made but in August 3,045 claims were made.  Compared to the same quarter in 2016, when fees were payable, the number of single claims made in July-September 2017 has increased by 64 per cent and the number of cases of multiple claims has also increased by 63 per cent.

The Government has confirmed that a new fee-paying system is likely to be introduced in future, as one of the reasons for the introduction of fees was to weed out vexatious claims and this is still an objective.  Whilst, at this stage, no further details of what the system would like are known, it is highly likely any future fees will be set at a much lower level to avoid restricting access, so will have a lesser impact on claim numbers.

The ‘Gig Economy’ & Employment Status

In 2018, the Supreme Court will be reviewing the current case law tests for determining employment status in the so-called ‘gig economy’, when they hear the appeal in relation to the Court of Appeal’s decision in Pimlico Plumbers v Smith. The Court of Appeal had confirmed the ruling of the Employment Appeal Tribunal that a plumber who the company claimed was self-employed, was actually a worker, partly because he had to perform the work personally and was not allowed to provide a substitute.

The court will also hear Uber’s appeal against an Employment Appeal Tribunal decision in November 2017 that their drivers should be classed as workers, rather than self-employed.  The tribunal concluded that the relationship outlined in Uber’s contractual documentation did not reflect the true nature of the parties’ relationship, describing this as “pure fiction”.  The tribunal also rejected the suggestion that 30,000 London-based Uber drivers operated businesses on their own account, noting the significant control Uber placed over their drivers including requir uingse of the Uber app, calculating fees, penalising drivers for turning down trips and taking action if customer satisfaction ratings fell below a certain level.

The issue of employment status is important because it determines an employer’s obligations towards that individual, the individual’s legal rights and the levels of protection that are applicable to them under employment law.  For the Uber drivers, for example, a decision that they are workers, rather than self-employed would entitle them to be paid the national minimum or living wage for each hour they are logged into the Uber app, so long as they are within their territory and available to take passengers. They would also be entitled to future and previous holiday pay and other rights such as pension contributions, whistleblowing protection and minimum break periods.

A joint draft bill containing proposals for enhanced protections for gig economy workers has recently been published by two government committees.  The proposals focus on giving individuals more certainty about their status by providing an automatic assumption of “worker” status, so that it would be for an organisation to prove otherwise at an employment tribunal. This would also mean that these workers would be entitled to certain employment rights from day one.

We will have to wait to see if the government takes up the proposals set out in the draft bill but, in the meantime, it is recommended that organisations look carefully at any staff who are treated as self-employed, and evaluate any risks that might arise from a tribunal claim that the staff member is actually a worker or employee in employment law terms.  The implications of getting it wrong can be significant, as shown in the recent case of a worker who has been permitted to claim holiday arrears for the full length of his 13-year engagement, the European Court of Justice (ECJ) has confirmed in King v Sash Windows Workshop, because his employer had not “allowed” him to take leave, as both the worker and the employer had mistakenly believed he was self-employed.

To avoid problems, it is important to consider how the working relationship operates in practice and to then apply the corresponding employment status, which should be accurately reflected in contracts of employment.  If a contract does not match the reality of the situation, the law will treat that person as having a different employment status, regardless of what the contract says.

Fit for Work

The government’s landmark Fit for Work scheme will close their assessment services from spring 2018.  The scheme was introduced in 2014 and is a free occupational health assessment and advice service available to organisations, employees and GPS to manage sickness absence and assist employees in returning to work.  Unfortunately, due to a low rate of referrals, the government has announced the assessment services will cease from 31 March 2018 in England and Wales, and 31 May 2018 in Scotland. Those organisations who relied on Fit for Work, and included this service as part of their absence policy, will now need to review their procedures to ensure they are not leaving a gap in the support offered to their employees.

At the same time as removing this support to organisations, the government has launched a strategy to help a million more disabled people to get into employment over the next decade. Part of this strategy includes expanding the fit note scheme. Currently, only GPs are able to give a fit note certification but under the new strategy, this will be extended to include a wider group of healthcare professionals, including physiotherapists and psychiatrists. This will ensure that fit notes can be used proactively by organisations to help design a return to work program that is tailored to the specific needs of the disabled person.  It is hoped that expanding the fit note scheme will help replace the gap left by removing the Fit for Work assessment services, as a wider group of healthcare professionals will be able to make recommendations to support employees into work.

As part of their strategy, the government will respond to the 40 recommendations contained in the Stevenson/Farmer Review of mental health, the ‘Thriving at Work’ report. These recommendations included reforming the Statutory Sick Pay scheme, increasing transparency and improving organisational support. The government is also urging organisations to incorporate the report’s recommendations, such as the core and enhanced mental health standards.  The Prime Minister has explained the strategy “sets out how government, employers and the health service will work together to get more disabled people into employment, and help shift the attitude of business and society to disability”.

DBS Changes

Government changes to the way organisations can obtain a basic disclosure are set to come into force in January 2018.  The Disclosure and Barring Service (DBS) was formed in 2012 to support organisations to make safe recruitment decisions. The service undertakes around four million criminal record checks every year.  The DBS is also responsible for maintaining a list of more than 57,000 people who are barred from undertaking ‘regulated activity’ with children and/or vulnerable adults.

The DBS can provide three levels of disclosure certificates: a basic disclosure; standard disclosure; and enhanced disclosure. Whilst standard and enhanced disclosures are required for certain sectors and roles, a basic disclosure may be requested by any organisation and contain details of any unspent convictions and conditional cautions under the Rehabilitation of Offenders Act 1974.

Although individuals have been able to apply for basic disclosure certificates through the DBS since 2014, in practice, all applications in England, Wales and Scotland have been made through Disclosure Scotland. In January 2018, the DBS will take over the basic disclosure service and applicants in England and Wales will have to apply directly to them for a basic certificate. To allow a smooth transition, the DBS will be producing a new online application form. Applicants will also be able to track the progress of their basic check and raise any queries online. Organisations will still be able to use a Responsible Organisation to apply for basic checks on their behalf.

The DBS is also planning to make the DBS Update Service available to basic check applicants. This allows individuals to subscribe online and, in effect, carry their DBS check with them when they change employer. The recruiting organisation simply needs to carry out an online check, which is free of charge, to see whether any new information has come to light on the individual since their original check.

Guidance on Dress Codes

The government Equalities Office is expected to produce guidance on dress codes in 2018, so as to reinforce current legislation on discriminatory practices. The guidance is a direct response to the petition undertaken by an agency worker who complained of her treatment at the hands of an accountancy firm where she had been placed to work.

The petition, “Make it illegal for a company to require women to wear high heels at work’, which was started by Nicola Thorp, gained significant press interest. In December 2015, Ms Thorp was sent home from work because her smart flat shoes did not meet the company’s dress code; it contained a rule that female workers must wear high heeled shoes of between 2 and 4 inches. She was given an opportunity to go and buy a pair of shoes that would fit the criteria but refused, arguing that wearing them all day would cause her pain, and that male colleagues were not subject to the same rules. She was sent home without pay.

The dress code in question was very detailed in its requirements, even specifying that nail varnish, outside of 14 authorised colours, could not be worn and setting out the following other requirements:

  • Make-up worn at all times and regularly re-applied, with a minimum of: light blusher, lipstick or tinted gloss, mascara, eye shadow, light foundation/powder;
  • Tights of no more than 15/20 denier to be worn at all times on duty. Black or brown may be worn for darker skin tones and natural/tan for lighter skin tones;
  • Regularly maintained hair colour (if an individual colours her hair), with no visible roots.

Thorp’s petition gained 150,000 signatures and called for it to be made illegal for an organisation to require its female staff to wear high heels at work. She was supported by the Women and Equalities Committee, who undertook an inquiry into the discriminatory practices experienced by women at work.  They heard from women who had been required to dye their hair blonde, wear revealing outfits and to reapply make up throughout the day.  As a result, the Committee compiled a report making nine recommendations for action.  The government has said that its new guidance will take on board some, but not all, of these recommendations.  It has not been considered necessary for changes or additions to be made to existing laws, as the government states that discriminatory dress codes are already unlawful; the guidance will, therefore, provide employers with a helpful reminder of this.

Auto-enrolment Changes

The government has announced plans to introduce auto-enrolment reforms that will lower the minimum enrolment age to 18.  A review by the Department for Work and Pensions (DWP) has made recommendations as to how future workplace pension savings can be increased. Since automatic enrolment was introduced in 2012, over 9 million people have been enrolled in to workplace pensions with an increasing number saving for retirement at an earlier age.

To further combat the number of workers who are still under-saving for their retirement, the government will introduce the DWP’s recommendation to extend pension saving to a younger generation of workers. The Secretary of State for Work and Pensions, David Gauke, has said the government is “committed to enabling more people to save while they are working, so that they can enjoy greater financial security when they retire”.  From the mid-2020s the minimum enrolment age will lower from 22 years old to 18 years old. This will introduce 900,000 younger workers into workplace pensions.

A further recommendation that is likely to be taken forward is that workplace pension contributions will be calculated from the first pound earned, rather than the lower earnings limit. Currently, pension contributions are calculated once the worker has earned £5,876, so that workers with a number of smaller paid jobs are unlikely to reach the calculations threshold.  The review has confirmed the earnings trigger, the amount workers have to earn to become eligible to be auto-enrolled, will remain at £10,000 for 2018/19 but will continue to be subject to annual reviews.

Organisations should also currently be aware of the incoming contribution changes, set to take place over the next two years. The current minimum contribution is set at 1 per cent for both employers and employees. In April 2018, minimum contributions will increase to 3 per cent for employees, and 2 per cent for employers. From April 2019, these increase again to 5 per cent for employees with employers contributing 3 per cent.

Handling Public Transport Disruptions

Following the chaos faced by commuters in the weeks running up to Christmas, as a result of the Arriva bus driver strike, this week many rail services have been cancelled across the country due to three days of strike action. This is a result of a long-running row over maintaining guards on trains and it is uncertain if further strike action will follow.  This raises the question of how employers should deal with situations where employees are finding it difficult, or even impossible to get into work, due to disruptions to public transport, or other issues outside of their control.

In such situations, employers can speak to those employees affected to see if alternative arrangements can be made for the working day, which may include:

  • working from home (this may only be viable if the employee is already set up to work from home)
  • agreeing a period of annual leave
  • enforcing annual leave
  • permitting employees to use any banked time off in lieu.

Organisations who wish to enforce annual leave have to give the correct notice period, which is twice the length of the annual leave to be enforced eg. two days’ notice to enforce one day of annual leave.  Alternatively, it may be appropriate to arrange a temporary period of flexible working of earlier or later starts according to what may be more practical because of the transport disruptions.  It is also worth noting that if employees are parents of children whose school is shut because teachers can’t get to work, they have a right to take time off for dependants when the normal care arrangements for their children break down, while they try to make other arrangements. Time off for dependants should normally last no more than 2 days per instance and employers should agree with the employee how the rest of the time, should they need it, is to be categorised.

Latest Case Law

The Employment Appeal Tribunal (EAT) has confirmed in The Chief Constable of Norfolk v Coffey that rejection of a job applicant because of a perception that her medical condition will be a disability in the future, and that future adjustments would have to be made, is disability discrimination.

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