A recent case has highlighted a potentially helpful mechanism in Data Protection legislation for employers to use if they are concerned about employees taking data when they leave.

Rebecca Gray was a recruitment consultant and joined a rival recruitment agency. She took the (not unusual) step of emailing her own personal email account with the contact details of approximately 100 existing and potential clients. She then used this data to contact the individuals when in her new job. The Information Commissioner (ICO) brought criminal proceedings against her under the Data Protection Act 1998 for unlawfully obtaining personal data; the wronged party being the former employer (as the data controller). The problem for Ms Gray was that, while those clients may have consented to providing their personal data to her old recruitment agency, they had not given permission for her to download it and take it to be used by another agency, or for any other purpose. Ms Gray, following her guilty plea: received a fine of £200, was ordered to pay £214 prosecution costs and a £30 victim surcharge. This is nothing compared to gaining a criminal record, as well as losing her new job, and potentially devastating her prospects for future employment in her chosen career.

Peter Stanway, our BackupHR™ legal expert comments:

Preventing and managing the potential misuse of such information can be challenging for businesses. The usual and more well known recourse is to sue, or at least threaten to sue, an employee for breach of confidentiality provisions and/or restrictive covenants which have (hopefully) been included in their employment contract. Although this is the right approach in some cases, and employers should always draft contracts to give themselves this option, it can ultimately be an expensive process. Employers, therefore, may be pleased to hear that the Information Commissioner (ICO) has shown that it is prepared to use its teeth, and bring criminal proceedings against departing employees for unlawfully obtaining and using personal data. This could prove to be an effective deterrent for employees who are considering taking data with them when they leave.

There has been reluctance from employers to bring a criminal complaint against their former employees, even in the most flagrant cases. The knowledge that criminal prosecution is a potential avenue which employers can pursue for data theft, is a powerful weapon.

Actions

  • Be vigilant when recruiting new hires who claim to be able to bring client lists, or other confidential business information which could contain personal data, across with them. The ICO could target a new employer if they are aware such information probably belongs to the former employer, but have chosen to use that personal data to their own advantage.
  • Employment contracts and handbooks should include well-drafted confidentiality provisions and restrictive covenants (where appropriate).
  • Ensure that any internal policies relating to confidential information and data protection are clear about any obligations, and are properly communicated to all staff.
  • Make sure that employees are aware of their obligations, and the consequences of breaching their employment contracts and the data protection legislation. Train staff to understand obligations around data usage and the sanctions for breach.
  • Ensure that the duty to return or destroy confidential information is covered in the employer’s leaver process and correspondence.

We are not suggesting that appropriate contractual provisions should be ignored; far from it. This case suggests a way for those whose data has been ‘stolen’, even if not subsequently used, to get some retribution and justice.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.

In most disciplinary situations, it will be part of a fair process for an employer to carry out an investigation into suspected misconduct before deciding to take disciplinary action. However, the decision in Radia v Jefferies International Ltd illustrates that this will not inevitably be the case. Failing to offer an appeal hearing will often be fatal to fairness though.

Mr Radia was employed in a senior financial services role, and had to be assessed as fit and proper to carry out his duties. When he brought a disability discrimination claim against his employer, the Tribunal found that his evidence was evasive or “not credible in many respects”. Those findings led the employer to take disciplinary proceedings against him, on the basis that he had acted dishonestly and was not a fit and proper person to perform his role.

The employer did not conduct an investigation into the allegations, but proceeded directly to a disciplinary hearing on the basis of the Tribunal’s findings. He was dismissed, and not offered an appeal.

His claim for victimisation and unfair dismissal was rejected by the Employment Tribunal. He then appealed to the Employment Appeal Tribunal (EAT), and was successful in relation to the point about the appeal. The Employment Tribunal had originally found that even if an appeal had been held, it would have made no difference, and so the lack of appeal did not render the dismissal unfair. However, the EAT disagreed with that finding, as they did not consider there was enough evidence to justify that decision.

However, the Claimant’s appeal in relation to the investigation failed. The EAT found that the two phases of investigation and disciplinary are not a legal requirement for an employer, and in the circumstances, it was considered that the lack of the two stages in this case did not make the dismissal unfair. The correct question was whether the employer had concluded that holding an appeal would have been futile. Instead, the second Tribunal had reached its own conclusion on that point. This was not the right approach, so the employee’s appeal on that point succeeded.

Peter Stanway, our BackupHR™ legal expert comments:

This is a useful, but fact specific, judgment for employers, showing that it may sometimes be possible for employers to use evidence from another source rather than conducting a time-consuming internal investigation. What will amount to a reasonably fair procedure will depend on the circumstances, and how they are interpreted by the Tribunals, which makes it difficult for employers when making decisions.

Following clear procedures when disciplining and dismissing an employee mitigates the risk of an employer losing at Employment Tribunal. They provide employers and employees with a clear understanding of the process that will be followed, so they both know what to expect. Appeals are part of natural justice, so almost inevitable. They also provide an opportunity for employers to correct any earlier errors, and get a better idea of the potential claimant’s case. Failure to follow procedures also sends bad signals to your remaining workforce.

Actions

  • Conduct a fair and proportionate investigation before a disciplinary meeting.
  • Review the investigation at the disciplinary meeting, and be prepared to investigate further if the employee raises new evidence.
  • Always offer dismissed employees the right to appeal, regardless of length of service.
  • Hear the appeal fairly, and in accordance with your procedure.
  • Write to confirm the appeal decision, giving clear reasons for the final judgement.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.

Eileen Jolly became the oldest person at 88 to win a case after a hospital collected ‘discriminatory’ feedback from colleagues. She was sacked when colleagues complained about her age and “frailty”. She felt “humiliated” and “degraded” after the Royal Berkshire NHS Foundation Trust dismissed her for allegedly failing to upload details of cancer patients into a new electronic database.

The Judge added there was a “suspicion” Jolly was a “scapegoat”, and cited evidence she had received inadequate training, which could have led to the mistake.

In 2015, the system changed to an electronic patient record (EPR) system. Mrs. Jolly was informed her role had changed from Medical Secretary to ‘Patient Pathway Coordinator’ – although it was never made clear what this new role meant – and she was required to attend waiting list training. The session was “quite short” and had to be rescheduled because the trainer could not tell employees how to use part of the system. The rescheduled session ultimately did not take place.

The Tribunal ruled she had been unfairly dismissed, and her discrimination claims on the grounds of age, disability discrimination and breach of contract also succeeded. Her employer had not followed their own capability procedure. Her dismissal was “tainted by discrimination”, both age and disability.

Peter Stanway, our BackupHR™ legal expert comments:

This case demonstrates why ACAS recently published further guidance on age discrimination. They point out that age discrimination at work – treating someone unfairly because of age – is against the law other than in very limited circumstances. Age discrimination, also commonly called ageism, is one of the most common forms of unfair treatment at work. The employee age gap in some work places can now be 50 years or more.

Features of the protected characteristic of age under the Equality Act include: –

  • protection against unfair treatment because of someone’s actual age, or the age they are thought to be, or the age of someone they are associated with
  • protection against harassment because of age, and
  • different treatment because of age being allowed in very limited circumstances

Much of the problem comes from stereotyping, i.e. making assumptions about job applicants’ and employees’ capabilities, and likely behaviours because of their age.

Stereotyping can often lead to: poor decision-making when recruiting and promoting or deciding who gets trained; the de-motivation of existing staff who become aware of the stereotyping; and less trust among colleagues. The ACAS guidance and the Jolly case serve as a reminder about the importance of treating employees consistently, no matter what their age. Employers must ensure that their Managers are aware of the high-risk areas outlined in the guidance, and review their recruitment and performance management procedures, to ensure that they are not discriminatory.

Actions:

  • Avoid stereotyping – judge people on their job performance – not assumptions because of their age; like assuming that people are too old to learn new working practices and/or won’t do as well as someone younger.
  • Have different age groups in a team or project – shared goals can bring people together.
  • Encourage different age groups to swap ideas, knowledge and skills.
  • Educate Managers that age discrimination is not only unlawful, but is a disciplinary offence.
  • Adopt a “holistic approach”, and conduct proper investigations when an issue regarding an employee’s “perceived lack of competency” is raised.

I might also add that you should not invent daft job titles, and when peoples’ roles are changed, essential good quality training actually takes place.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.

It was in April but it is arguable that with modern highly stressed workforces, we should always be reminding ourselves of the approaches we need to counter stress among employees.

There will always be times when we need to work outside our normal hours; meaning early mornings, late nights or even weekends. And while technology gives us the ability to work anywhere and at any time, there are downsides to this. The pressure to be ‘always on’ can lead to stress and exhaustion, as well as impacting on staff productivity, loyalty and retention.

Employees have told BUPA they try to downplay illnesses so that they don’t take time off, and their latest research showed that workers would wait an average of 52 days before seeking help for a mental health issue, and less than one in 10 would confide in a colleague or manager.

Peter Stanway, our BackupHR™ legal expert comments:

A certain amount of workplace stress can be positive. It can help employees prepare for challenges, and some even feel they work best under pressure. Evidence shows that for most people work can be beneficial for their physical and mental health. But issues can arise when someone is stressed or overworked for a prolonged period.

When someone isn’t coping with stress you might notice they are constantly worried, lack confidence or feel emotional, and they might even tell you about physical symptoms such as headaches, nausea and tiredness. This may be due to them not having a healthy work-life balance, so they are not able to manage work stress.

When it comes to wellbeing at work, the importance of safeguarding mental health has become much more understood over the past few years. Two thirds of business leaders now report that mental health has become a boardroom priority. Good employers are putting measures into place to help protect employee mental health, reduce stress and tackle the ‘always on’ modern working culture. Smart employers know that organisations are only as strong as their people and that the experiences, wellbeing and motivation of each worker are fundamental to how the organisation performs as a whole.

Figures from the data organisation NHS Digital reveal the scale of fit notes being issued by GPs in England. The number of notes for “neurotic and stress-related disorders” rose from just over 576,000 in the 2016-17 financial year to nearly 620,000 in 2017-18.

Actions

  • Draft a common-sense Stress at Work Policy – include it in your Health & Safety Policy and publicise it.
  • Implement the HSE’s Management Standards – their guidance on Work-Related Stress should be required reading for all Managers.
  • Lead from the front – employees feel empowered to work regular hours and take breaks if they see senior leaders displaying the same behaviour.
  • Set boundaries – creating time limits for when employees can respond to and send emails helps to encourage breaks both from work and technology. This prevents excessive working hours, helps them ‘switch off’ and get the downtime they need.
  • Make goals achievable – switching off from technology completely is virtually impossible. Instead, encourage colleagues to set realistic goals for cutting back on their technology use, which they’re more likely to stick to.
  • Start the conversation – if you see a colleague working all hours, displaying signs of stress, or is always ‘switched on’, initiate a conversation about how they’re feeling, and if they need support with their workload or health advice.
  • Promote wellbeing for all staff – prevention is better than cure, so encourage people to be open and react appropriately.
  • Be supportive – staff who are experiencing mental health problems need to know that they are not alone and their illness will not be career limiting.
  • Provide training – improve awareness on the potential dangers of prolonged occupational stress.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.

The President of the Employment Tribunals has issued the annual update to the Vento guidelines, setting out the bands of awards for injury to feelings, payable in cases of discrimination at work, adjusted for inflation.

The new bands are: –

  • lower band: £900 to £8,800 (less serious cases)
  • middle band: £8,800 to £26,300
  • upper band: £26,300 to £44,000 (the most serious cases)

Awards in the most exceptional cases may exceed £44,000. These updated figures apply to cases presented on or after 6 April 2019.

The lower band applies to ‘less serious cases’ where the act of discrimination is a one-off or isolated occurrence. The middle band applies to serious cases that do not fall within the higher band. The higher band applies to the most serious cases, for example, where there has been a lengthy campaign of discrimination and/or harassment.

Peter Stanway, our BackupHR™ legal expert comments:

We know of no cases in the exceptionally serious category. Employment Tribunals have great flexibility to fix the compensation at what is fair and just in each case. They will consider all the evidence, including the claimant’s evidence about the impact of the discrimination on them, before deciding an appropriate award.

While the tribunal will assess the award of damages for injury to feelings in an objective way, the perception and the individual reaction of the claimant will be an important factor for the court to consider. The more upsetting the conduct is to the individual, the more seriously the discrimination is likely to be viewed, and the higher the award for injury to feelings. Where a one-off act of discrimination is particularly humiliating or serious, and the victim suffers serious consequences as a result, an award in the higher bands could be justified. A tribunal would require quite detailed evidence about the seriousness, before it would be prepared to award a high figure.

Claimants sometimes have unrealistic ideas about how much money they will be awarded, often because the cases that make the news are there precisely because they are so unusual. A tribunal will take a measured and methodical approach when they assess how much to award, but it is hardly a science. There is little in the way of hard evidence about what is normal, but we believe that most awards fall into the lower category. According to the pressure group Working Families, a typical award for injury to feelings for maternity cases is about £5000.

An award for injury to feelings is meant to reflect how upset the employer made the claimant feel, not to punish the employer for how badly they have behaved. The lesson for employers is to avoid discriminating against employees in the course of employment. Fair treatment is a moral and legal duty, and employers have a responsibility to investigate and respond to any issue they become aware of, as well as taking all reasonable measures to protect employees from harassment and discrimination.

Having a strong and unambiguous equal opportunity policy is a powerful tool for preventing discrimination and harassment in the workplace. In addition to developing the right policy for their workplace, employers also need to take make sure that everyone understands the policy and that it operates effectively in practice. Policies and practices that amount to indirect racial discrimination may be justified only when the policy or practice is a proportionate way of achieving a legitimate business aim.

Actions:

  • Educate all your workers about discrimination through meaningful training
  • Encourage workers to respect each other’s differences
  • Respond to any evidence or complaints of inappropriate behaviour
  • Deal with any complaints of discrimination promptly and confidentially.

It is essential for employers to be proactive and prevent discrimination from occurring in the first place. Claims are difficult and expensive to defend, so best avoided.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.

An Employment Tribunal has found that Middlesbrough FC did not breach national minimum wage legislation after deducting the costs of season tickets from staff wages. The hearing heard that in 2016 the football club had deducted the cost of season tickets for the 2016-17 season from employees’ wages over several weeks. It was clear that staff were happy with the arrangements.

Middlesbrough FC argued, that the club was simply doing its staff a favour after they themselves had requested the money for their season cards to be spread out over multiple weeks. HMRC had issued the club with a notice of underpayment in respect of the season tickets, because in its view the practice was in breach of the Act whether or not the staff were happy with the arrangement. They argued: “(In other cases) there was no finding or even allegation that the companies had acted improperly but a strong line must be taken with them, to deter any other less scrupulous employees.”

The judge agreed that it had not paid staff less than the minimum wage. He found that the deductions made were permitted under the legislation.

Chairman Steve Gibson said: “We have maintained for two years that the position that HMRC had adopted was unreasonable, and that it was not in the public interest to pursue this matter against the club”. He added that the case was a waste of public money and was “symptomatic of a bureaucratic civil service who are out of touch with the real world”.

HMRC were unapologetic in their approach. They maintain that the legislation does not draw a distinction between breaches arising from uncertainty or mistake, and deliberate underpayment or indeed ‘underpayment’ at the employee’s request. Business Minister Greg Clark has promised to look at simplifying rules around
minimum wage legislation.

Peter Stanway, our BackupHR™ legal expert comments:

The ruling follows news in January that retailer Iceland is appealing against an HMRC decision that it had not paid the minimum wage, where staff were paying into a savings scheme. We identified this issue in our HR Alert last May in our feature National Minimum Wage Failures which included other football clubs.

Middlesbrough FC has effectively won the right to pay staff below the minimum wage by providing other benefits to them. This is an approach to be taken with extreme caution as even if it makes sense, the judgment is only from an Employment Tribunal and HMRC may well appeal and carry on with its approach.

We identified this issue in our HR Alert in May 2018 and reiterate our comment that the complexity of the minimum wage legislation and the way HMRC applies it means that some employers can make genuine mistakes.

The current approach of HMRC causes confusion for employers and employees. The policy behind the national minimum wage is to protect employees and ensure a reasonable level of income. Where an employee elects to dedicate part of their salary towards a benefit provided by their employer then tribunals may be reluctant in future to interfere with that policy, notwithstanding that the remaining income would take them below the national minimum wage. Hopefully HMRC and/or the Government will take note and clarify the situation for employers.

Actions:

  • Get professional advice about staff purchasing/savings schemes
  • Ensure all working time is recorded and paid
  • Avoid making deductions that take wages below the NMW threshold
  • Conduct reviews of systems and working practices, to identify exposure

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are
doing, or call us for a free initial chat on 01480 677980.

The Government is looking to extend the legal protection against redundancy, so that it continues for up to 6 months after new parents and pregnant women return to work. At present, The Equality Act 2010 states that there is a ‘protected period’ that protects pregnant women and new mothers from being discriminated against when they return to work. This period commences from the start of a woman’s pregnancy until she returns to work after maternity leave.

In 2016, the BEIS conducted research which showed that 1 in 9 women said they were either fired, made redundant or treated badly as a way of forcing them to leave their jobs when they returned to work after having a child. The same research revealed that as many as 54,000 women a year may lose their jobs due to pregnancy or maternity.

As the law currently stands, a woman whose job becomes redundant during her maternity leave period is entitled to be offered (as opposed to merely having the opportunity to apply for) a suitable available vacancy, where one is available with the employer or an associated employer. If an employer fails to comply with this obligation, any dismissal will be automatically unfair and probably, though not necessarily, discriminatory. This obligation currently only arises in connection with women actually on maternity leave: If the woman has returned to work, or has not yet gone on leave, then her employer is not under this strict obligation to offer her a suitable available vacancy in priority to others. It still has to take reasonable steps to find her alternative employment, as would be the case with other potentially redundant employees.

The consultation seeks views on whether to extend this right for up to six months after employees return to work from maternity leave. The Government sees this as the simplest way of achieving additional protection – so mothers who have recently returned to work have the same protection as those on maternity leave.

Peter Stanway, our BackupHR™ legal expert comments:

If these proposals are implemented, employers planning a redundancy exercise would need to ensure they have identified any maternity returners and other parents who have returned to work within the last six months, and that they are given first refusal on any suitable alternative roles.

It is unlikely that extending the period of prioritisation for maternity returners will be particularly difficult for employers administratively. But significantly for employers, this proposal will inevitably mean that there will be more redundancy processes where they may not be able to offer suitable alternative roles to the best candidates. This proposal adds no protection for maternity returners where no suitable alternative role is available, which is very often the case. Vacancies elsewhere in the group will have to be offered to the woman, if she can fill them adequately and even if she is far from the best candidate available, internally or externally.

It could be argued that a better approach to improving retention rates immediately post maternity leave would have been for the government to look at the price of childcare and the rules relating to flexible working. It can also be argued that the Government might have focused more on what can be done to reduce the number of women who are dismissed not long after announcing that they are pregnant. There is a pressure group named ‘pregnanthenscrewed’ which aims to support women in this invidious position.

As these proposals have not yet become law there is no need to take action just yet, but the following actions should help to keep you legal:

  • Ensure that pregnant women are risk assessed early on for health & safety purposes
  • Inform them of their rights and make them feel supported
  • If redundancies arise be very careful not to disadvantage them, or women on maternity leave and make adjustments, whilst not being unfair to other employees.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.

 

In Ball v First Essex Buses Limited, a bus driver who was dismissed after testing positive for cocaine has won compensation of almost £40,000 at an employment tribunal.

Mr Ball, who suffers from type-2 diabetes and high blood pressure, worked as a driver for First Group for more than 20 years. He said the drug could have got into his system when he licked his fingers after accepting notes from students. A random drugs test showed that he had traces of the Class A drug in his saliva. To prove his innocence, he submitted a hair follicle test that showed no trace of cocaine, but it was dismissed as evidence by the bus company.

An employment judge agreed that he could have tested positive after handling contaminated bank notes (apparently four out of five bank notes can test positive for traces of cocaine, according to experts). Mr Ball would often lick his sore fingers at the wheel, because he had to prick them with needles every two hours to monitor his blood sugar levels. As a man in his 60s with his medical conditions, Mr Ball said it would have been “reckless” for him to take cocaine as it could lead to heart problems and a stroke.

Peter Stanway, our BackupHR™ legal expert comments:

The Employment Tribunal held that First Buses had acted unreasonably in reaching the decision to dismiss. They should have considered his health, the possibility of cross contamination as he had contended, the negative hair follicle tests, and Mr Ball’s offer to be re-tested. The Employment Tribunal also noted that First Buses had failed to follow its policy which said that it would take all evidence into account. The judge said First Essex had “closed their minds” to considering any other explanations as to why their employee had tested positive. “The Respondent had no other reason to believe that the claimant had been on duty under the influence of cocaine and the claimant’s behaviour whilst on duty or at the time of the test, his demeanor, good character, longevity of service, exemplary service, age, and health condition were all contra-indicators. They closed their minds to all possible explanations that did not fit this predetermined conclusion.”

Although there was nothing in the Drug and Alcohol Policy that stated other tests should be considered, there was nothing within the procedures that stopped the Company from considering evidence that came from outside the Company. Managers had privately acknowledged this possibility in communications but would not admit ‘new evidence’.

There is a positive obligation on the employer to consider all aspects of an employee’s case.

Although failing a drug test is likely to be gross misconduct, the process followed in dismissing an employee and considering appeals must also be fair and employers must follow a fair process in all circumstances. Just because the offence is serious does not mean that a harsh approach has to be taken. Given the seriousness of the accusations and the potential impact, then employers should be flexible and be open to deviating from ‘normal’.

It is sensible to take a firm approach with drug and alcohol issues particularly where there are safety implications, but firm should not mean rigid and unthinking.

Actions

  • Follow your procedure and the ACAS Code of Practice.
  • Investigate thoroughly and impartially.
  • Be prepared to deviate when necessary to consider evidence contrary to your evidence.
  • Keep an open mind.
  • Consider any mitigating factors when giving your decision.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.

Annual leave may not accrue during parental leave, when the contract of employment is suspended held the European Court of Justice (ECJ) in Tribunalul Botosani v Dicu.

Ms. Dicu, a judge in the Regional Court of Botosani, was entitled to 35 days’ paid annual leave. Having been absent from work on maternity leave from late 2014 to early 2015, she opted to take parental leave from 4 February 2015 until 16 September 2015. She then extended her period of absence to 17 October by taking 30 days of annual leave.

The ECJ considered the Working Time and Parental leave Directives. For some purposes, the right to annual leave presupposes that the worker was actually at work, but for others (such as sick leave or maternity leave) it doesn’t.

Peter Stanway, our BackupHR™ legal expert comments:

The Parental Leave Directive enables Member States to define the status of the employment contract during periods of parental leave, and in Romania, the contract was suspended. The result of this ‘suspension’ is that absence on parental leave is not considered as a period of ‘actual work’ for the purpose of determining paid annual leave entitlement. Therefore, the ECJ held that parental leave was not a period of work for the purposes of the Working Time Directive. The judgment focused largely on the distinction between unforeseeable, unavoidable periods of leave and leave which is taken as the personal choice of the worker involved.

In fact, it is usually a worker’s own decision to take care of their child. The principles applied to sickness and maternity leave could not therefore be applied to parental leave. Where, as in this case, statute treats the employment contract as suspended during a period of parental leave, the ECJ found that the period could not be treated as a period of ‘actual work’ for the purpose of determining holiday entitlement.

Application to the UK

The decision is not one which will change the statutory position in the UK; as the Maternity and Parental Leave Regulations 1999 states that the employment contract will continue, albeit in an altered form, during parental leave. This case may however be relevant in some situations, such as where an employee is to be absent from work on a career break or sabbatical. UK law leaves it open to the parties to negotiate the terms of the absence – including whether or not holiday will accrue.

Parental leave is an unpaid right accorded to parents of children who are under the age of 18 and allows the parent to take up to 18 weeks, unpaid (although individual contractual arrangements may offer pay during parental leave). Employees who have been employed continuously for 12 months by their employer are entitled to parental leave. There is a simple process by which an employee should notify the employer of his or her intention to take parental leave, and the employer has the right to postpone the leave. Importantly, the parental leave provisions offer protection to an employee who takes parental leave, or who seeks to take parental leave.

Parental leave is an under-used benefit because it can be difficult in practice for employees to exercise their rights. It is usually unpaid so can put people off taking time, even when it is available.
This is a good decision for employers and although we do not really have many clients with regular parental leave requests it is encouraging that the ECJ can come up with a common sense decision.

Actions

  • Ensure that you have a well-worded policy on parental leave that is publicised and understood.
  • Do not confuse it with Shared Parental Leave or Paternity Leave.
  • Deal with any requests sensitively, properly and pragmatically.
  • Get advice if you get requests for leave that do not fit the legal criteria.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.

In WM Morrison Supermarkets plc v Various Claimants, the Court of Appeal has upheld the decision of the High Court that an employer was vicariously liable for the actions of a rogue employee, who disclosed the personal information of around 100,000 colleagues on the Internet. The Data Protection Act 1998 (DPA) did not exclude vicarious liability in such circumstances, and there was a sufficiently close connection between the employee’s employment and his wrongful conduct for it to be just to hold the employer liable. In so holding, the Court has confirmed that motive is irrelevant to the test for vicarious liability, even when, as here, the employee’s motive was to harm the employer rather than to achieve some benefit for himself, or to inflict injury on a third party.

Mr Skelton, a disgruntled senior IT internal auditor at Morrisons, was asked to send data to external auditors. He exploited his legitimate working access to their databases to steal and post online the personal details of employees. The data consisted of names, addresses, gender, date of birth, phone numbers (home or mobile), national insurance numbers, bank sort codes and account numbers, and salary details. He was convicted of fraud and offences under the Computer Misuse Act 1990 and the DPA, in pursuit of a personal grudge against Morrisons. Some 5,000 employees sought to hold them vicariously liable for Mr Skelton’s misuse of their private information and breach of confidence.

Peter Stanway, our BackupHR™ legal expert comments:

Lawyers’ views remain divided on whether such activity was truly in the course of employment, or a ‘frolic of the employee’s own’. From a corporate compliance standpoint, the decision causes a problem, since there is, in effect, very little that can be done to protect an employer (and consequently data subjects) from the actions of a rogue employee. For the Courts to find that the employer can be liable for a malicious breach, notwithstanding that it took appropriate steps to protect the data, will be of concern to many businesses.

The Court of Appeal specifically rejected Morrisons’ public-policy argument that vicarious liability in similar scenarios imposes a disproportionate burden on “innocent” employers. The Court’s strict stance in that regard should be viewed in conjunction with the possible increase in data protection-related group litigation now that the GDPR is in force. The decision is particularly notable in light of the ICO’s conclusion, following its investigation into this case, that Morrisons had not breached the DPA, and as such, should not be fined. On a practical level, the Court suggested that employers should insure against data breaches committed by employees given the large potential liabilities involved.

The case is likely to go to the Supreme Court, but whatever the result there, organisations cannot be complacent about data protection.

Actions

Notwithstanding our concern that there is little that can be done to prevent clever, senior, malicious individuals from committing illegal acts; employers should ensure that they have:

  1. Properly vetted staff, particularly where they require access to confidential information.
  2. Clear, easily understood and relevant policies, which are regularly updated and communicated to employees and some contractors.
  3. Train staff on security rules and requirements.
  4. Close monitoring of how sensitive data is handled.
  5. Protocols which prevent indiscriminate access to, and copying of, sensitive information to personal devices.
  6. Strong indemnities in employment contracts as a financial deterrent to potential rogue employees.
  7. Sufficient insurance policies in the event of “Armageddon” – as the Court put it.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.