In the Supreme Court Judgment of Newcastle Hospitals NHS Trust v Haywood, it was held that there is a term implied in all employment contracts that written notice only applies when it is read (if the contract does not spell out something different).

Mrs Haywood had no express term in her contract as to how written notice was to be given, and in terms of when it ran. The Trust issued a written notice of dismissal by recorded delivery. If the written notice of dismissal was taken to run from 27 April 2011, she would receive a non-actuarially reduced early retirement pension (but not if notice was received before 27 April). She was away when the letter was sent on 20 April. Her father in law collected the letter from the post office on 26 April, and she read it on her return home on 27 April 2011.

Peter Stanway, our BackupHR™ legal expert comments :

The Supreme Court held that notice ran from 27 April 2011, as Mrs Haywood did not have a reasonable opportunity of reading it before then.

This decision is about the common law position as to when notice of termination takes effect. In Gisda Cyf v Barratt in 2010, the Supreme Court had previously held that the “effective date of termination” for the purpose of unfair dismissal law was the date on which the employee opened and read the letter, or had a reasonable opportunity of doing so. However, the Supreme Court had been careful to limit that decision to the interpretation of the statute in question.

Implications

Employers who wish to give written notice of termination to an employee who is absent from the office will need to take additional care to ensure that it has been “communicated”. It is always clearer and safer, wherever possible, to give notice and to communicate dismissal face to face, or at least by phone. It is advisable to keep records of the date and time of any such conversation, and exactly what was said. It should be followed by written communication.

A recorded delivery letter has to be signed for, so best to do it as well as posting first class. An emailed letter (to an address the employee is using) or even a telephone call (followed up in writing) may provide added certainty of the date from which notice runs.

In this case, the NHS Trust sought to do this by using various methods, including special delivery and email. However, they did not help themselves by sending notice of termination when they knew the employee would be away from home on holiday. If you have to send a letter, make sure you follow it up with telephone calls and emails (where you can) to try to obtain confirmation that it has been received.

We recommend that documents sent by email should be accompanied by a delivery receipt and a read receipt. If the timing of communication is crucial, consider sending the letter by courier (where it can be signed for), or even instruct a specialist process server. This will make it more difficult for the employee to demonstrate that they did not personally receive it. If a particular date or timescale is important, an ‘astute’ employee may plan to be hard to contact; this should be considered.

Actions

  • Plan dismissals carefully, and consider when people may be away.
  • Ensure you know how and when they can be notified of any decision, and where written confirmation can be sent.
  • Use several methods of communication, preferably including verbal and email.
  • Be very clear about dates.
  • Include a clause in contracts about when notice is deemed to take effect.

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 Court of Appeal has held that regular overtime should be included in the calculation of holiday pay.

In the case of Flowers and others v East of England Ambulance Trust, ambulance crews argued that their voluntary overtime should count towards their ‘normal’ remuneration, and therefore be included in holiday pay. The Employment Tribunal held that ambulance workers’ non-guaranteed overtime in respect of “shift overruns” should be included in the calculation of their holiday pay, but that on the facts of this case, purely voluntary overtime did not have to be included. They had brought unlawful deductions from wages claims in relation to how the Trust calculates their holiday pay. 

The case went to the Employment Appeal Tribunal (EAT), which held that even voluntary overtime had to be included, by which time the Trust had conceded that it should pay for shift ‘overruns’ as these were not really voluntary, as they are essential to efficiency and patient safety. It was acknowledged that it is not open to any of the claimants to leave at the end of the shift if they are in the middle of an emergency call.

The Court of Appeal held that for a payment to count as “normal” remuneration, it must have been paid over a sufficient period of time. This will be a question of fact and degree. Items which are not usually paid, or are exceptional, do not count. Items that are usually paid, and regular across time, may do so. One decisive criterion or test for determining whether a particular component of pay is part of normal remuneration is where there is an “intrinsic link” between the payment, and the performance of tasks that the worker is required to carry out under their contract of employment. However, that is not the only decisive criterion or test. What matters is the overarching principle and its object. Applying these principles, the voluntary overtime worked by the claimants should have been considered in calculating their holiday pay.

Lord Justice Bean stated that voluntary overtime should be counted when calculating holiday pay if it is sufficiently regular and settled for payments made in respect of it to amount to normal remuneration. 

“… There is no separate requirement that the hours of work are compulsory under the contract.”

This decision follows the decision of the EAT in Dudley Borough Council v Willetts in 2018, which held that the issue was whether payments for voluntary overtime fell within the Working Time Directive concept of “normal remuneration”. This recent case has gone one step further than the Dudley case, and now means voluntary overtime should be included in holiday pay calculations, even if it is irregular pattern, provided it has been regularly paid over a sufficient period of time.

The CA did not address the issue of how to distinguish between voluntary overtime which was ‘sufficiently regular and settled’, or broadly regular and predictable, which should be included and that which was ‘exceptional and unforeseeable’ which was not. This leaves open further challenges on the point, not least litigation on where the line is to be drawn before voluntary overtime should be included.

Comment

This case is not authority for the proposition that all voluntary overtime must now be included in the calculation of holiday pay. Notwithstanding this point, employers should now include regular overtime and regular commission payments in their holiday pay calculations, or run the risk of a successful “unlawful deduction from wages” claim against them.

What is “regular enough” is a question of fact in each case. So, if a person works overtime irregularly, for example, where there is no predictable pattern to it, or there are big gaps between the overtime working, then employers can still argue that it is not a regular payment which should be included in holiday pay. If you have employees whose overtime is not ‘regular’ but is ‘settled’, then you may need to review your approach.

The principle that people should not be worse off when they go on holiday is difficult to argue with, but for some employers it is a financially challenging issue, and the administration of it is far from simple.

Issues Arising

Litigation Risk

Making a claim for unlawful deductions is not difficult, and has little risk to employees. It is possible to argue on the facts, and on the extent that back pay should be made, but defending such claims should be a last resort.

Reduce Exposure

It is easy to say reduce your overtime working, but we recognise that this is easier said done, with skills shortages or high workloads, but it has to be the safest way of reducing such exposure. Making it more irregular may also help.

Introduce it to a Degree

The right to be paid for non-guaranteed overtime in holiday pay applies only to holiday pay for the four weeks’ minimum annual leave under EU law, not to the additional 1.6 weeks provided for by the Working Time Regulations. Employers need to decide their policy on how to treat the additional 1.6 weeks’ statutory minimum leave, and any additional contractual entitlement.

If you decide to include pay for overtime in all holiday pay to avoid complicating the administration of payments, you still have to decide whether this is just to contractual entitlements above 4 weeks, or to also pay the extra on bank holidays which may seem even more complicated.

Calculation Period

The default position is that calculations should be based on the last 12 weeks’ pay. Many have payroll systems which make this an easy and inexpensive option. Other employers choose longer time frame to calculate average earnings, as the law permits this approach and may in future encourage it, rather than the default of the last 12 weeks default.  The problem with this approach is that it may be more expensive than taking an average period of longer than the recent few weeks/months. We have clients who take a rolling 12-month average or last year’s P60 earnings or earnings over the holiday, financial or calendar year. This means that everyone can plan what holiday pay will be paid and avoids fluctuation, particularly if taking holiday after periods of working long hours.

Individual or Group?

The law would suggest that those individuals who fall into the regular overtime working category are different to people who are not quite ‘regular’. The first person may be entitled to average pay, the second possibly not. The legal result is that employers should, therefore, take an individual approach to see which employees’ voluntary overtime qualifies as normal pay, as the time sufficiency will vary from person to person. Many employers do not want to be having to make frequent decisions about whether a particular employee has become, or ceased to be, regular in their overtime working. In those circumstances, it may be easier to say” You will get average pay, if you are a production worker, engineer or whatever category/ department”.

Other Groups

Part-timers who work extra hours are not doing overtime in the traditional sense, but they should be paid an average payment.

It is well established in case law that commission and some regular bonus payments should be reflected in holiday pay. It is likely to carry over into regular stand-by and call-out payments.

Supreme Court Appeal?

The Ambulance Trust has applied for permission to appeal to the Supreme Court. We still do not know whether such permission will be given. Employers could hope and plan for this to happen. Such an approach would have the attraction of delay, and the chance that the judges in that Court might provide more clarity, especially over the issue of sustained but not regular overtime.

If the factoring in of yet more people into average holiday pay calculations is of a concern, talk to your Consultant then we may soon know whether a further decision is pending, and would be happy to discuss how it relates to your circumstances.

You are welcome to raise any concerns with our Consultant, who would be pleased to advise you on any element of the issues arising from this newsletter.

At this time of the year, thoughts turn to raising morale and entering into a bit of festive spirit, but there are some seasonal hazards to be aware of.        

Most employers put their Christmas tree and decorations well out of the way during the year, and have to get them down from the loft or highest possible shelf. Use something safe to reach, not inappropriate chairs. The same logic applies to hanging decorations.

Are those old lights safe and properly approved with a CE mark? Do not allow your employees to have cables to lights trailing across walkways, or to cause an electrical overload. Paper decorations must be kept away from heat sources, and if you have motion sensors alarms, ensure that they are properly secured.    

We now turn to the more difficult bit surrounding Christmas, i.e. the traditional Christmas booze-up, or punch-up as we tend to call it.  If you organise a function then you need to give serious thought to how much drink you are providing, and warn people about the dangers of excessive consumption of alcohol. There are three main areas of risk:

  • drunks hurting themselves;
  • drunks abusing or hurting others; and
  • drunks driving home illegally;

Apart from the fact that you may be vicariously responsible for the above, there are likely to disciplinary issues arising, whether the function is held on site or off. You may even be responsible even if you do not organise it, if it is associated with work.

The consumption of illegal drugs is something you should also be on the lookout for.

Whilst not strictly Christmas related, this is a cold and dark time of the year and that has its hazards.  As an employer, you have a responsibility to ensure people can get into and out of work safely, especially in ice and snow. You also ought to be assessing the risk to drivers and others working on their own in bad weather, and taking appropriate steps to deal with your findings.   

Many employers take on temporary staff for Christmas, and you have an obligation to look after them. You need at least to complete an adequate induction plan, focussing on safety and appropriate behaviour, and have records of such.       

Christmas can be stressful either because workloads/hours increase and deadlines have to be met. Your employees are also trying to do too much at home, whether it be writing cards or going to parties. Look out for the signs of stress, and make appropriate welfare interventions. Hopefully this short article will not have added to your stress, and you will be able to have a good Christmas break having done all that you need to do to find the balance between looking like Scrooge, i.e. a killjoy, and creating a joyous environment.

Many employers get busy at Christmas, and many employees go above and beyond the call of duty and work long hours. But there are limits.

Mr Pazur worked as a Kitchen Porter for Lexington Catering Services Ltd, which assigned him as part of a support team to various different locations. He was denied his right to a rest break when assigned to work for a particular client. He refused to return to work for that client and told them it was because they expected him to work eight hours with no break; leading to him being threatened with dismissal, and then subsequently dismissed. He claimed that the threat of dismissal was an unlawful detriment, and also that he was automatically unfairly dismissed.

Peter Stanway, our BackupHR™ legal expert comments:

In order for such claims to succeed, a Tribunal must be satisfied that:

  1. the employer imposed or proposed to impose a requirement on the Claimant;
  2. requirement was in contravention of the Working Time Regulations;
  3. the Claimant refused to comply with that requirement;
  4. refusal was the reason for the detriment and/or dismissal;

Mr Paruz lost at Tribunal, so he appealed to the Employment Appeal Tribunal (EAT). They held that the Tribunal had correctly considered whether the Claimant had explicitly refused (or proposed to refuse) to accept the requirement. They noted that if simple non-compliance (such as not turning up) was enough, Parliament would not have used the word “refuse” in the legislation. Consequently, there needed to be an explicit communication of the Claimant’s refusal.

Nevertheless, the EAT allowed the appeal as on the facts as found, there was only one possible outcome in the detriment claim, namely that his refusal to return to a problem client was the communication of a refusal to comply with a requirement in contravention of the WTR, and that refusal materially influenced the threat of dismissal made by his employer. The EAT allowed the appeal as they concluded that the Tribunal had made a finding elsewhere that the Claimant had, in fact, explicitly refused to return to the client because he had been refused his break.

It was clear that there was at least some evidence that Mr Pazur’s refusal to return to the client’s site was (partially) down to his refusal not to abide by the unlawful requirement regarding no rest break. This was a material influence on Mr Pazur’s refusal. There was no need for it to be the only reason.

The decision emphasises that threatening a worker with dismissal following their refusal to work without a rest break under the Working Time Regulations 1998 will entitle them to bring a detriment claim under section 45A of the Employment Rights Act (ERA) 1996. Furthermore, dismissing them for such a refusal will also breach section 101A of that Act.

Actions

  • Ensure that employees and workers are given at least a 20-minute break after 6 hours of consecutive working.
  • Follow up on any complaints about working time in a constructive way.
  • Be very careful when taking disciplinary action against an employee where they have raised complaints that could amount to whistleblowing and/or breaching section 101A of the ERA.
  • Get professional advice.
  • Do not try to rely on the argument that everyone is busy at Christmas time so ‘normal rules do not apply’.

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.

There is no detailed legislation specifically designed to deal with the provision of employment references. There is no statutory obligation on an employer to provide a reference at all. However, some legislation and case law impact on different aspects. Surprising, this area of employment law is largely governed by the law of contract. Although employment law also involves obligations of good faith, unless the employer has agreed to provide a reference, they cannot be forced to do so. This may seem odd, particularly given that most employers will make an offer of employment, subject to a satisfactory reference when hiring.

Employers are not under an obligation to check a job applicant’s references, or provide an existing or ex-employee with a reference. It is, however, very good practice to contact an applicant’s referees to seek objective information on the applicant’s suitability and reliability for a role. If you work in certain sectors, such as Financial Services or the Health and Social Care Sector, work references must be supplied, and all appointments are conditional on the references not identifying any concerns.

It is a myth that you cannot give a bad reference. If you give a reference, you have a duty to take reasonable care to ensure it is true, accurate and fair, and that it is not misleading. This duty is owed to both the employee and to the new employer.

A bad reference which you cannot substantiate with facts e.g. gross misconduct dismissal, runs a risk of the employee suing you for damages, if they lose a job directly as a consequence. They could also bring a claim for defamation or discrimination. The new employer could sue you for giving a good reference to someone who is/was patently unsatisfactory, if they have suffered losses as a consequence. In the circumstances, it is perhaps not surprising that many employers opt for giving just a ‘tombstone’ reference, e.g. “she/he worked from X to Y as a clerk”.

One option is to provide no references at all which, unless there is a contractual right, this is a lawful approach, but is not exactly helpful to either the employee or their new employer. There is still a risk, particularly of discrimination claims, unless you stick rigidly to your no references policy. Remember that you too might later in your career need an employment reference supplied by your current employer!!!

ACAS Guidance

New guidance from the Advisory, Conciliation and Arbitration Service (ACAS), provides employers with a timely reminder in relation to their obligations when providing and obtaining references, which is an area in which employers can easily fall foul if they are not careful.

It is increasingly common for employers to provide simple factual references as standard, which includes only basic facts about the applicant, such as their employment dates and job descriptions. ACAS advise that if you are providing further detail (in relation to an ex-employee’s skills, abilities, character etc.), that this should be true and accurate, and a fair reflection of the individual. Take reasonable care to ensure that the information in the reference is true.

When opinions are provided, they should be based on facts. References should not include irrelevant personal information. To avoid claims, employers who express opinions in references (as opposed to facts) should review the references for inaccurate or discriminatory material.

ACAS also suggest that employers should have a policy to help them handle reference requests, telling them what information they and their employees can provide. We are introducing a suitable Reference Policy into your 2019 Handbook updates, so your HR Consultant will be in discussion with you on this matter.

ACAS also recommend that for employers looking to obtain references, it is important to always remember to seek a candidate’s permission to approach their previous (or current) employer. More on this later.

Giving References

If an employer decides to provide a reference, it should be produced by someone with training in preparing references, and have all the relevant information. Employers should ensure the reference is factually accurate and fair, and not misleading in the overall impression it gives to the recipient. Employers should also:

  • Establish if there is an express contractual obligation to provide a reference.
  • Consider any implied contractual obligation to provide a reference.
  • Check whether there are any other consequences of refusing to provide a reference, including potential discrimination claims.
  • Check all employee information (for example, dates of employment, career history, appraisals, record of absence).

Other matters to consider include:

  • References should be addressed to a named person rather than ‘to whom it may concern’, and marked ‘“Strictly Private and Confidential”, and “to be opened by the addressee only”. Providing “to whom it may concern” references raises the risk that the reference may fall into the hands of third parties without the required duty of interest. This has various negative consequences for the employer.
  • Verbal (oral) references can be given, but notes should be kept of the conversation, and no statements made that the employer would not be willing to make in writing.

If supplying a reference where a settlement agreement has been reached with the employee, it is often normal to have reached an agreement on the precise wording of the reference, or the generally positive tone, to avoid any future litigation.

Employers should remember that although references are given in confidence, the recipient may be required to disclose a reference under certain circumstances, such as a request for disclosure by an Employment Tribunal or under the Data Protection legislation.

Obtaining References

Many employers seek references after the job offer has been made; other employers take up references before conducting interviews with all their shortlisted candidates. The purpose of referencing is to obtain objective information on the candidate’s suitability for the role. Employers are under no obligation to take up references for job applicants, and former employers are under no obligation to provide one.

It is important to state in all job adverts, and/or offer letters, that any job offer is conditional upon the receipt of satisfactory references. This means an employer can withdraw an offer without being liable for damages if this requirement is not met. If a job applicant is offered a job, there are two types of job offer that can be made:

  • A conditional job offer – This can be withdrawn if the applicant does not meet the employer’s condition for example, satisfactory references. Once an employer has received satisfactory references, and informed the job applicant, an unconditional job offer can then be made.
  • An unconditional job offer – Once an unconditional offer is made, this cannot be withdrawn, and if accepted, a contract is formed.

Employers should usually ask for a minimum of two references; one of which should be the applicant’s present or most recent employer. Current employers should only be approached with the applicant’s permission. The following points should be borne in mind:

  • For jobs involving the safeguarding of children or vulnerable adults, the details of any concerns that relate to the safety and welfare of children or vulnerable adults can be requested.
  • Prospective employers may ask whether there have been any disciplinary procedures relating to the applicant, but this should be limited to current sanctions that have not expired.

If the prospective employee cannot provide two employment references, it is good practice to accept an educational reference, or a character reference to avoid placing the individual at a disadvantage. Job offers can be made conditional on receipt of a satisfactory reference, allowing organisations to withdraw the employment offer if the references are not deemed satisfactory.

The process for carrying out reference checks should be:

  • Step one: request details of referees from applicants, often via an application form.
  • Step two: once a conditional offer of employment is made, send a reference request to the referee.
  • Step three: on receipt of the reference, consider whether this contains information that reflects on the prospective employee’s suitability for the role.

Sickness Absence

Particular care should be taken with absences because:

  • Asking for an applicant’s attendance record and the amount of sick leave taken is common, but can lead to claims of disability discrimination if the reason for the applicant’s absence is disability related.
  • Mentioning other absences may be classed as sensitive data, the provision of which breaches Data Protection legislation. Revealing the number of days an employee has been absent, but not the reasons for the absences, will not require explicit consent.
  • Employers must get explicit consent from the individual if they are providing sensitive personal data, such as physical or mental health information.
  • Rejecting a job applicant, or withdrawing an offer of employment once they know about a prospective employee’s extensive absences is risky. Long term absence is a good indicator of a disability, and employers may be deemed to be aware of a candidate’s disability once the absences have been revealed.

Disclosure of References

Previously under the Data Protection Act 1998 (DPA), employees had the right of subject access to personal information held by their current or former employer, and this could, in principle, include references given by current or former employers. However, there was an exemption whereby an employer who provided a confidential reference was permitted to decline to disclose this to the employee. This protection was, however, undermined by the fact that the employees could then apply to the recipient employer for a copy of that reference, who could not then rely upon the same exemption.

Under the GDPR and DPA 2018, employees still have the right to make subject access requests. However, the loophole in the previous legislation has been closed, and personal data held by either the giver, or the recipient, of a reference may be withheld where it consists of a reference given, or to be given, in confidence for the purposes of the:

  • Education, training or employment, or prospective education, training or employment, of the data subject.
  • Placement, or prospective placement, of the data subject as a volunteer.
  • Appointment, or prospective appointment, of the data subject to any office.
  • Provision, or prospective provision, by the data subject of any service.

Even though access to a confidential reference may have been made more difficult, an unhappy person may be able to rely upon exercising their enhanced data subject rights, including the right to restrict processing, erasure, object and rectification. Employees (or former employees) retain the right to complain to the Information Commissioner if they think their rights under the legislation have been infringed, and they also now have enhanced rights to seek compensation from the employer giving a reference, if they suffer material or non-material damage as a result of infringement of their data protection rights.

The final decision on whether to release a copy depends on whether it is reasonable. Reasonableness is assessed by considering: –

  • The ex-employer’s need for confidentiality
  • Employees’ interest in seeing what has been said about them
  • The requirement that a reference must be truthful and accurate
  • The potential impact on the employee.

Consent

When responding to reference requests, employers need to consider and document their lawful basis for processing the personal data of the employee. This is central to the concept of “fair and lawful processing”, which is at the heart of data protection legislation. In an employment context, the lawful grounds or conditions which should usually be relied upon will be either that the processing is necessary for the performance of the contract with the employee, or that it is necessary to fulfil a legal obligation. However, neither of those fit easily with the provision of a reference.

Consent is an additional ground. Most commentators on data protection and, indeed the Information Commissioner suggest, that in most cases any consent given by employees will not be valid because of the imbalance in the power relationship. However, in the case of the provision of employment references, it is clearly in the employee’s interests to give consent, and they are not in any way under pressure from the current employer such as might invalidate any consent given.

Oral References

The lessons to learn from the case law are:

  • oral references (formal or informal) are just as (if not more) likely to lead to legal claims than written ones;
  • employers should, wherever possible, avoid giving negative subjective assessments of former employees, particularly orally;
  • Managers should be trained not to be caught off guard by telephone calls seeking amplification of written references;
  • if a positive reference would be unfair, inaccurate or misleading, an employer should, wherever possible, fall back on confirming dates of employment and what the job entailed, without giving any commentary on how good that person was within the job role, or, give no reference at all.

Disclaimer

Employers often include a disclaimer of liability arising from errors, omissions or inaccuracies in the information provided in a reference. You should make use of disclaimers, as they may deter an employee, or a new employer from making a claim, but be aware that disclaimers may be void if tested in the Courts. The circumstances in which a disclaimer will be effective are limited. However, there is no disadvantage to the employer including one.

A disclaimer will normally say something to the effect that the reference is given confidentially and in good faith. Disclaimers will explain that, although the employer believes the reference is accurate based on the information available, the employer and its Directors will not be liable if inaccuracies lead to loss as a result of relying on the reference.

The effect of a disclaimer is to attempt to limit the referee’s liability in negligence. A disclaimer used in these circumstances is void unless it is reasonable, and legislation sets out the test of ‘reasonableness’. It is generally thought that liability cannot be excluded for mis-statement of facts (performance, disciplinary record, and so on), which are normally known to an employer. However, a disclaimer in relation to an opinion on the employee’s suitability for a particular job may be reasonable.

Bearing in mind the possibility of liabilities in this area, employers should have robust internal procedures in place for how references are undertaken.

A disclaimer should also say that the contents are not to be revealed to the subject.

 

You are welcome to raise any concerns with our Consultants, who would be pleased to advise you on any element of the issues arising from this newsletter.

In 2020, we are running three courses which will cover much of the knowledge and many of the skills needed to be a successful Manager of people.

These three interactive courses are a must for new Managers, as well as being good refreshers for experienced Managers, as case law and good management practices continue to evolve over time.

Our training courses are highly participative, practical in content, and are intended to challenge our delegates into recognising there are always alternative ways of dealing with people and/or situations.

When Can and Should you Dismiss – Newmarket – 25th February & Norwich – 20th October

Dismissing staff can have serious implications if done badly.  The law requires that you have a fair reason for dismissal (e.g. restructuring is not necessarily redundancy), and that you follow fair processes.

This course will cover the differences between a fair and unfair dismissal; why following the ACAS code and internal procedures is essential; and the key practical issues to consider when dealing with discipline, dismissal and redundancy processes.  The aim of the course is to encourage delegates to follow proper procedures and apply sound judgement.

We have designed the course to suit those who are new to Management, as well as being a worthwhile refresher for the experienced Manager looking to enhance their existing skills, and wants to be more successful by learning new/different approaches.

Acknowledging Good and Dealing with Poor Performance – Newmarket – 25th March & Norwich – 11th November

How do you assess that someone is competent?  If they are, how do you encourage them to be even better, and if not, what do you do about it?  These are challenges which Managers face on a daily basis.

This course encourages Managers to have realistic expectations on what people are capable of doing; how to define and assess what is poor, good or exceptional performance; formulating performance improvement plans and programmes for personal development; and continuing to motivate and encourage good performers.

Employment Law Myths & Essential Policies – Norwich – 23rd April & Newmarket – 3rd December

We will share with you some of the most misguided beliefs that Managers hold as fact about employment law, and discuss the most frequent mistakes Managers make when dealing with staff; as well as the difficulties created through lack of key employment policies, or not following them.

This course will debunk myths, show you what you can and cannot do, and make sure you avoid fear and confusion when dealing with staff issues.  We will also talk about the need for a wide range of employment policies and their importance, so that Management can deal with people effectively.

The Facts

The menopause, otherwise known as the “change of life”, is a natural stage of life that millions of women workers are either experiencing now, or will go through in the future. The menopause is marked by changes in hormones and the end of menstruation (when a woman’s periods stop for 12 consecutive months).

Symptoms of menopause can vary enormously – from the mildly uncomfortable to the incredibly debilitating. They include hot flushes, palpitations, night sweats and sleep disturbance, fatigue, concentration loss, memory loss, mood swings, skin irritation, depression and loss of confidence. Urinary problems may also occur during the menopause, and many women have recurrent lower urinary tract infections, such as cystitis. It is common for the need to pass urine to arise more often or even urgently.

For most women, the menopause occurs between the ages of 45 and 55, the average age for the menopause is now 52; although a minority of women can experience it in their 30s or earlier. The symptoms can last from four to eight years.

There are around 4.3 million women over the age of 50 currently working in Britain, and consequently, an increasing number of women of menopausal age are working in the UK. 70% of women of menopausal age are in work.

Issues at Work

Menopausal symptoms can prove embarrassing for some women, making them reluctant to discuss the issue openly. Working with male colleagues can increase the level of embarrassment and discomfort, e.g. during hot flushes. Some women suspect the menopause has a negative impact on their Managers’ and colleagues’ perceptions of their competence at work, and feel anxious about these perceived performance deficits, leading to a loss of confidence. Their performance can suffer, and situations which would normally have been dealt with easily, become more difficult.

A bad night’s sleep can affect concentration, while heavy periods or hot flushes can be physically distressing and embarrassing. The psychological effects can also impact relationships at work. For some, the symptoms are so severe that women are forced to leave their job altogether.

A recent research report, The Effects of Menopause Transition on Women’s Economic Participation in the UK, from the University of Leicester, lists the negative effects on menopausal women’s quality of working life and performance at work as including:

  • reduced engagement with work
  • reduced job satisfaction 
  • reduced commitment to the organisation 
  • higher sickness absence
  • an increased desire to leave work altogether

The research found evidence to suggest that these outcomes have a negative effect on some women’s time management, emotional resilience, and the ability to complete tasks effectively.

Support at Work

Often employers have very little understanding of the difficulties surrounding the menopause, and see them as a private matter. Consequently, it is very rarely discussed and organisations are slow to recognise that women of menopausal age may need special consideration. Many women feel that their Managers would be embarrassed if they disclosed their problems, and consequently do not ask for the adjustments that may help them.

Menopausal women have to combat the twin problems of ageism and sexism which face women ‘of a certain age’. Despite the scale of the issue, the menopause if not a taboo subject, still merits scant guidance for employers in helping to support employees through this significant life stage. Women themselves often don’t want to ask for special treatment, and may well be embarrassed. For women working in male-dominated organisations, having to ask for menopause-related sick leave can be embarrassing, particularly when the Line Manager is a young male. According to the website healthtalk.org, relatively few workplaces are responding to their needs.

Treating women as equal to men does not mean treating the two sexes the same. Women are different biologically, and this needs to be considered at work.

The Legal Issues

Employers are required under the Health and Safety at Work, etc Act 1974 to ensure the health, safety and welfare of their employees and, under the Workplace (Health, Safety and Welfare) Regulations 1992, to make workplaces suitable for the individuals who work in them. The duty under Management of Health and Safety at Work Regulations 1999 to carry out risk assessments should include any specific risks to menopausal women.

To meet the definition in the Equality Act, the symptoms must have a ‘substantial and long-term adverse effect on the ability to carry out normal day-to-day activities’. The menopause does not itself amount to a disability, but the physiological or physical consequences of going through it can do for those women who suffer significant health problem as a consequence. There are now Tribunal cases that have deemed that the Claimant’s menopausal symptoms have constituted a disability. It is important to note that these cases do not confirm that menopause will automatically be classed as a disability; it depends on how it affects an individual woman at that stage in her life.

Therefore, this type of condition will be judged by the severity and extent of the individual’s symptoms. We were predicting four years ago that the menopause may well be classified as a disability, so we expect other tribunals to come to the same conclusions depending on the symptoms and facts.

In summary, employers have a legal duty to ensure working conditions don’t exacerbate someone’s symptoms, protect women from discrimination.

What does this mean for Employers?

Before making a decision with regards to an individual’s employment, it is important to take all aspects of the individual’s current state into account. Outside of a disciplinary or a capability scenario, employers should take reasonable steps to support an affected employee in coping with her condition.

The bigger issue is what can employers do generally to reduce their chances of having to deal with a menopause-related problem.

Four issues emerge as areas for possible improvements at work:

  1. greater awareness of Managers about the menopause as a possible occupational health issue for women; 
  2. increased flexibility of working hours and working arrangements; 
  3. access to informal and formal sources of support, including Occupational Heath, where appropriate; 
  4. improvements in workplace arrangements;

In more detail, this means:

  1. Building awareness of the condition, considering practices and creating healthy environments for workers. The menopause should be on employers’ agendas in order to make the workplace a safe and understanding space for the women going through this phase of life. Employers can help by communicating to their workforce that health-related problems, such as the menopause, are ‘normal’. 
  2. As many women experience tiredness, it is good idea to offer flexible working hours, job sharing, and opportunities to work from home. Flexible working is something every UK worker has the right to request anyway. Women should be encouraged to prioritise work-life balance, and maintain firm boundaries between work and non-working life. 
  3. With any longstanding health-related condition, sympathetic and appropriate support from employers and Line Management is crucial. However, Managers can only be sympathetic to these needs and make suitable work adjustments if they are aware of a problem. People are more inclined to disclose if they regard Managers as supportive, and there is a culture of openness about health issues. The key is good and honest communication between the Manager and the employee. Women are more likely to discuss menopausal issues with somebody they feel able to talk to. Employers can raise awareness of the menopause through health promotion programmes, and awareness training for Managers. They can also encourage social support within the workplace. This could include information packs, mentoring schemes and lunch time support. 
  4. There are no universal easy solutions to workplace arrangements, but some simple actions may help to ensure the working environment does not exacerbate menopausal symptoms:
      • Relocation of desks closer to opening windows, provision of desk fans and/or more control over heating.
      • Plentiful supplies of cold water and more frequent toilet breaks.
      • Rethinking of uniforms, specifically avoiding nylon. Employers should provide menopausal women with lighter, non-synthetic workplace clothing, uniforms or corporate clothing to accommodate hot flushes.
      • Clean, well-equipped and comfortable toilet facilities near workstations should be provided for women experiencing urinary incontinence, with showers, washing facilities and quiet workplace rest areas.
      • Access to natural light, which has been identified as having a positive effect on mood and the absorption of calcium during menopause transition (pcs), or light boxes if natural light is not easily available. 
      • A reduction of exposure to noise to help reduce fatigue.

Improvements in workplace arrangements should become accepted and normal. The changes required to provide these improvements need not be costly or complicated. Above all, it is important to listen to women, and respond sympathetically to any requests for adjustments at work.

There are several things women can do outside of work to improve their quality of life in the workplace. Education is important, but the focus should not just be on the woman, but what the employer can do. As a Manager, you can remain hopeful and optimistic – women experiencing the menopause often go through different types of emotions, such as anxiety and depression. These feelings do subside, so encourage women to discuss how they feel, as these feelings are very normal.

Some businesses have branded themselves as “menopause friendly” as a means of helping recruitment. We are not advocating this, nor are we keen on creating Menopause Policies, but it should be part of your approach to the health, safety and wellbeing of your workforce.

Approaches that should be considered include the following.

  • Improving organisational culture to make it clear that the organisation supports menopausal women.
  • Providing women in the workplace with relevant information. Information should include how they can get support for any issues that arise as a result of the menopause. Any literature should encourage women employees to discuss any relevant health concerns with their GP.
  • Supporting women in the workplace by training Managers to understand how the menopause can affect work, and what adjustments may be necessary to support women who are experiencing it. In larger organisations, support can also be provided by allowing the provision of informal support for mid-life women during menopause transition. This can include women’s workplace networks, online discussion forums and helpline numbers.

Benefits

By supporting women through the menopause, and fostering an age and gender inclusive workplace, your organisation will benefit from:

  • increased engagement and loyalty, as well as lower sickness absence and employee turnover;
  • will help you tap into the valuable skills and talent that men and women of all ages have to offer;

Woman are an integral part of most workforces these days, so as they age it is inevitable that they will experience the menopause at work. Whilst some women will be lucky enough to suffer minimally, the majority will not, so it is important that all employers, whatever their size, take on board their needs, and reassure them that they are still actively contributing during the menopause, irrelevant of whether they happen to temporarily look hot and bothered or rather tired!

 

If you would like to raise any concerns, our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

We have previously covered ‘what Managers need to know about personal injury claims’; in this Newsletter, we take it a little further by focusing on reducing the number and size of claims. Workplace injuries are costly. Apart from compensation, fines and loss of productivity, they can result in high emotional and physical strain on your employees, and can have severe repercussions for your business. Therefore, you should be investing in keeping your employees safe.

So it would be remiss of us not to point out that the best way to avoid claims is to avoid having accidents at work. Too many employers are resigned to accidents happening because “people lack common sense,” “do not follow our rules”, or “ignore their training”. We do not accept this approach which simply blames the worker. An accident, by definition, is something that happens unintentionally. They can’t be avoided 100 percent of the time simply because some things cannot be foreseen. That doesn’t mean their likelihood can’t be diminished greatly. In fact, in many cases, workplace injuries are the direct result of not following easy safety precautions.

Accident statistics tend to focus on fatalities rather than those who sustain injuries, which may be serious enough that they can no longer physically work, either for a period to time or not at all. These can form large and expensive personal injury claims due, in part, to the predicted loss of future earnings up until the time the employee states they were thinking of retiring, which could be past state retirement age.

When most people think of workplace accidents, they often automatically associate them with high-risk industries, such as construction or manufacturing. The truth is injuries can occur in any place of employment. We will, therefore, initially focus on avoiding accidents by creating a safe working environment.

It is generally cost-effective to prevent accidents at your organisation. There are three things you can do to help make your workplace safer, and hence make your Insurer much happier.

Put in place a Management System

  • Plan: work with your employees to identify potential problem areas, and set goals for improvement.
  • Train: give your employees the knowledge to identify and take action over potential risks.
  • Organise: make employees, including cleaning and contract staff, responsible for specific areas.
  • Control: ensure working practices and processes are being carried out properly, and keep records of all cleaning and maintenance work.
  • Monitor and review: talk to your employees so they can feedback on how measures are working.

Carry out Regular Risk Assessments

It is important that you identify all workplace hazards and take steps to reduce the risk for your employees. Risk assessments will help you to identify hazards, decide who is at risk and create a plan to eliminate or control them.

By carrying out a risk assessment, you will be meeting your legal requirements, and it will help you make an action plan to reduce the risk of an accident occurring at work.

  • Decide who might be harmed and how. Especially think about younger or older people, disabled or vulnerable people who may come into contact with your organisation.
  • Consider the risks. Note any potential problems, and do something about them.
  • Record your findings, and action plan what further control measures are required.
  • Regularly review the risk assessment and action plans to establish progress, and to take into account factors that may have changed, e.g. new working practices.

Know the Law and Apply it

It’s a good idea to read up and be aware of at least: the Health and Safety at Work Act (1974), plus the six pack of Regulations and COSHH, and keep a close eye on the HSE website.

An employer has two main responsibilities when it comes to preventing accidents in the work place:

  • taking measures to protect anyone in the workplace from harm (including visitors and customers);
  • informing the Health and Safety Executive (HSE), via RIDDOR, in the case of (i) death or specific incidents; (ii) accidents that prevent workers from returning to work for seven continuous days or more; and (iii) non fatal accidents to non-workers, e.g. members of the public, if they result in an injury and the person is taken directly from the scene of the accident to hospital for treatment to that injury;

It is an employer’s duty to conduct risk assessments, offer appropriate health and safety training, conduct emergency planning and provide adequate first aid. If you employ more than five people, you must have a written health and safety policy. By creating and distributing a health and safety policy, you show your employees that you take their health and safety seriously, which will increase their trust in your leadership. A good policy will reduce the risk of accidents, and give you some defence if you can show that it is current and relevant to what you do. Unearthing a ten year old document is unlikely to impress your insurer, or a claimant’s solicitor.

Avoid Accidents in the Workplace

Put safety at the forefront. Follow this list of tips on how to prevent injuries from happening in the first place:

  • Always be alert. Care for the well-being of the workforce so that workers are not working when unduly fatigued or stressed, or suffering from injuries or illness.
  • Don’t rush people. In many workplaces, time is of the essence. Employees are given deadlines that they must meet, so there is often a sense of urgency when it comes to completing certain tasks. It’s important, however, to give the appropriate amount of time to perform your duties safely. With a ‘get it done quick’ attitude accidents happen often because people take shortcuts.
  • Provide safety gear. Many jobs require appropriate PPE to be worn to protect the user from known workplace hazards. The trouble is that many employers do not insist that it be worn at all appropriate times. Your employees must always wear their PPE when it’s required, as using PPE correctly can potentially minimise life changing injuries should an accident occur at work. If your risk assessment indicates that your employees require PPE, you must provide suitable, task-appropriate protective equipment that is a suitable fit for each employee. Provide appropriate training to ensure your employees understand how and when they must wear it, as well as how to check and report any faults in their equipment. Those in charge must always lead by example and never shirk their responsibility to wear their PPE, and to enforce the wearing of PPE. However, you should only use PPE as a last resort, so ensure you implement all other controls measures first.
  • Provide clear instructions. Whilst many employees are expert at what they do, you need to ensure that they have been well informed and given appropriate training to make educated and/or dynamic judgments about what is and what is not safe. Paying attention to detail can help you to avoid making mistakes that can lead to injury.
  • Organise emergency drills. Workers can tend to take safety drills for granted. Emergency drills are conducted for the purpose of teaching employees what to do in the event of an emergency, but because they are not “the real thing”; the tendency is that people often go through the motions carelessly. However, participation in such drills couldn’t be more important, so if you spice up the drill with, e.g. deliberately blocking certain exit routes, it will shake people out of their complacency, make them think through what options do they have. Overall, they should find the exercise more rewarding and you will find some beneficial learning, especially if you timed how long it took people to find alternative exit routes.
  • Keep workspaces clean and clear. A cluttered, unclean work area is more difficult to efficiently manoeuvre in, and workers are more prone to hazards. Make sure employees adhere to something as simple as running computer cables and cords properly, so that they don’t create a tripping hazard. No matter if the work environment is a manufacturing; warehousing or an office cubicle, keeping the area clean, well-maintained with good house-keeping standards significantly decreases the likelihood of accidents.
  • Post proper signage. You can help to make your employees aware of hazards by displaying hazard specific warning signs. All employees must understand what each sign means, and what precautions they need to take for specific hazards. Each work area on your premises will have different hazards, so you need to ensure that you select appropriate signs. Employers should post signs reminding employees of proper safety procedures in noticeable places, and in spaces where those specific procedures should be practiced.
  • Inspect and maintain all equipment and machinery. Regular maintenance is vital as it helps to ensure that all equipment is in a reliable and in safe working order. A competent person must carry out regular inspections and maintenance on your equipment and machinery in accordance with PUWER. Keep all inspection records. Many claims involving equipment are conceded or lost because of inadequate records.
  • Maintain a safe fleet and safe drivers. For employers that provide employees with business vehicles to complete daily tasks, it’s imperative that vehicles are well maintained and serviced on a regular basis. If you have a grey fleet of employee vehicles, then ensure that employees can provide evidence that their vehicles have business insurance, and that they are taxed and regularly serviced. Additional or advanced driver training will help reduce employer’s vicarious liability, as well as your insurance premiums.

Provision of adequate information, training and supervision

All workers have a responsibility for health and safety at work, and must make sure they work safely and do not put them or others at risk. Some of that is common sense, but it is also about the provision of information, training and good supervision.

Information ranges from good induction processes through to regularly informing and updating people about your health and safety rules, safe systems or work, all work procedures and risk assessments. Indeed, the failure to provide adequate written safe systems of work that the employee was then trained in is the personal injury solicitors default position, as many employers struggle to provide this evidence.

Proper training of all employees and Management is especially important when taking on a new/revised job that may present a number of risks. Employees must be appropriately and regularly trained in health and safety measures, and receive adequate training for all their duties. Appropriately trained employees are less likely to have workplace accidents, as they understand how to carry out their duties correctly and safely. By training your employees, you will also fulfil your legal duties and help foster a positive health and safety culture. If you fully record your training, then you will have a good audit trail to impress your insurer, and depress the claimant’s solicitor!

Most solicitors will attribute any accident (especially if they think their client was partially at fault) to a failure of supervision. Train supervisors well in their health and safety responsibilities which should be an integral part of their job, not just an add-on only when they have time.

Investigate thoroughly

The purpose of accident and incident investigation, if done well, should lead to the prevention of such events in the future. Organisations must carefully plan how they will investigate accidents, and to make sure that those involved have received adequate training, and are fully aware of the organisation’s policies and procedures. Prompt, thorough investigation reduces the opportunity for collusion.

Reasons to investigate a workplace incident include:

  • most importantly, to find out the cause of incidents and to prevent similar incidents in the future;
  • to process workers’ personal injury compensation claims;

Although there may be occasions when you are unable to do so, every effort should be made to interview witnesses. In some situations, witnesses may be your primary source of information because you may be called upon to investigate an incident without being able to examine the scene immediately after the event. Because witnesses may be under severe emotional stress, or are afraid to be completely open for fear of recrimination, interviewing witnesses is probably the hardest task facing an investigator.

Witnesses should be kept apart, and interviewed as soon as possible after the incident. If witnesses have an opportunity to discuss the event amongst themselves, individual perceptions may be lost in the normal process of accepting a consensus view where doubt exists about the facts.

Witnesses should be interviewed alone, rather than in a group. You may decide to interview a witness at the scene where it is easier to establish the positions of each person involved, and to obtain a description of the events. On the other hand, it may be preferable to carry out interviews in a quiet office where there will be fewer distractions. The decision may depend in part on the nature of the incident and the mental state of the witnesses.

If you have not investigated thoroughly, don’t be surprised if your insurance company opts to settle and then increases your business premium. A thorough, professional accident investigation with well complied supporting documentation will substantially decrease your liability.

Manage your insurance company

Most insurance companies want an easy life, but if you are having regular accidents/claims they will probably become reluctant to fight cases because of your poor accident history. Get on board with their advice on what you can do to improve safety, and what they can do to avoid encouraging claims, by not rolling over when a claim is without merit, or is being ‘inflated’. Check what records they expect you to provide, and tailor your systems accordingly. Some employers seem to discount the cost of accident claims as just an insurance issue, but bad employers will end up paying much higher insurance premiums sooner or later.

Pick your fights

There is no point fighting cases that you cannot win, it just reinforces the belief that employees cannot lose and generates more claims. If you have an objectively strong case, then it is worth defending, as winning sends a strong message to employees thinking of trying it on. Get advice – not emotional.

Consider paying people after accidents

Some of our clients have generous sick pay schemes, and some have no provision for paying people at all. Some of both groups will either explicitly or discreetly pay off people who have clearly been injured at work through employer negligence. The upside of such a policy is that it can generate goodwill, and takes away a substantial element of most claims, i.e. loss of earnings. In such circumstances, this reduces the chances of a claim, or reduces it to just the pain and suffering which is usually the lesser part of a potential claim. The downsides of making payments are that it may be taken as an admission of guilt, and may induce people to exaggerate their injuries/recovery times, or persuade people injured in a weekend sports match to attribute their injuries to an accident on Monday morning. This is not an easy subject, but prudent employers consider it on a case by case basis.

Return to work

If you can get people back to work quickly, then it will reduce the chance of a claim, or at least reduce the scale of the compensation. Keeping in regular contact with the injured employee will, to some extent, minimise the feelings of resentment and anger towards the organisation. Do this even if you know early on that they are planning to put in a claim. Keep up a regular flow of communication, encourage them to visit, and keep talking about their return to work, if that is possible.

Reasonable adjustments do not just apply to disabled people. If you can let people do ‘light duties’ , or office work, or work from home, it may not be ideal but at least you are getting some work out of them, and reducing your chance of an expensive settlement. You need to be creative with what work people can do, and consider a phased return to work, taking appropriate Occupational Health advice when necessary. Arrange and pay for counselling or other forms of proposed medical interventions, e.g. physio as a way of helping the employee. Document everything about the return to work discussions, the consideration of reasonable adjustments, the phased return and the subsequent monitoring. All of this can and will help mitigate the size of the compensation claim.

Finally, there is a temptation to take the view that the insurer will cover the costs. Read the small print, and you will find that any prosecution fines are not covered, only the legal costs, under what is now a new regime of substantially heavier fines. Also be aware that personal injury solicitors have up to three years after the accident, or at point of diagnosis of illness, to submit claims. If they know you are also being prosecuted, they will wait to establish the outcome, as a finding of guilty immediately increases their success of winning a more substantial claim for their client, or injured employee. Trying to take witness statements, finding and compiling evidence to support your employee’s claim years after the event is virtually impossible, but if you follow our guidance and keep excellent collated records, then you will be better able to fight subsequent personal injury claims when they arrive.

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

After much heralding, GDPR arrived on 25th May 2018, the world has not stopped turning, although we are not yet beginning to discover its true impact, as GDPR compliance goes beyond the sparkly new privacy notice, some internal training, and writing new/revised policies. There is as yet no case law on GDPR, but there have been some notable cases on the old data protection law, and some interesting prosecutions.

Cases for Data Breaches

The Independent Inquiry into Child Sexual Abuse was fined £200,000 after sending a mass email that identified possible abuse victims. An Inquiry staff member emailed 90 people using the “to” field instead of the “bcc” field – allowing recipients to see each other’s addresses, it said. The incident was a breach of the Data Protection Act. The Inquiry said it had apologised and reviewed its data-handling. It is an easy mistake to make, but a potentially damaging one.

In B v The General Medical Council, the Court of Appeal has given guidance on when to disclose information containing the personal data of more than one individual or mixed data, in response to a subject access request (SAR). In this case, an expert report concerning a GP’s fitness to practice was not disclosed to a patient in response to a SAR made by the patient for personal data held about him. This was withheld on the basis that the report contained mixed personal data, i.e. personal data of both the GP and the patient.

Generally, under data protection legislation, a data controller is not obliged to comply with the request unless the third party has consented to disclosure of the information. Previous case law indicated that there was a presumption against disclosure in a mixed data case where the third party withholds consent. In this case, the GP, Dr B, did not consent to the report’s disclosure, principally on the basis that the request was being made with a view to litigation against him.

The Court of Appeal held that:

  • In determining whether to disclose mixed data, a balance should be struck between the requestor and objector’s competing interests and a presumption in favour of withholding disclosure should only be applied in a ‘tie-break’ situation, i.e. where all of the other interests balance equally.
  • The requestor’s interests in seeking the disclosure should not be devalued because the information may assist them in litigation.

This is now the leading case on mixed personal data, and will be relevant to employers faced with SARs where the disclosure of mixed personal data is in issue. Employers face an increasingly onerous task when complying with SARs under the new regime, and, following this decision, should think carefully before refusing requests for disclosure of “mixed data” due to lacking consent from a third party.

Following a cyber-attack on the British and Foreign Bible Society, which led to a data breach by the charity in 2016, the ICO has recently fined the Society £100,000 for failing to take “appropriate technical and organisational steps” to protect its supporters’ personal data. In particular, the ICO criticised the Society for failing to put strong enough security measures in place to protect the accounts it held concerning its donors, exposing them to the risk of financial and identity fraud.

This attack appears to have been made possible by vulnerabilities in the Society’s network, including its weak password, which the attackers exploited in order to access the data of over 400,000 donors to the charity, including names, addresses and payment card details. The attackers then used ransomware to encrypt the data, holding the Society to ransom by offering to unlock the encrypted data for a fee.

The ICO appears to have taken a strong stance in this instance to emphasise the point that, even where organisations are innocent victims of a cyber-attack, they are responsible for any data breaches that result from their failure to put sufficient protective measures in place. The ICO said that due to the reality that cyber-attacks happen, organisations must make it “as difficult as possible for intruders”.

In considering the seriousness of the data breach, the ICO emphasised the fact that supporters’ religious beliefs could be inferred from the personal data in question, as this made the breach likely to cause “substantial damage or substantial distress”, the extent of which “cannot be underestimated”.

The key lessons we can learn from this case are:

  • Even where it is a victim of a criminal cyber-attack, an organisation can itself commit an offence simply by using systems which leave themselves vulnerable to such data breaches. Organisations must, therefore, prepare for the possibility that they may become the victim of such an attack.
  • This fine is considerably larger than the fines previously imposed on charities by the ICO. Of the thirteen charities fined in 2016-17, the largest fine had been £25,000, and the rest were all less than £20,000. The substantial increase in fine indicates the start of a much tougher approach by the ICO.
  • It is important to act quickly and proactively following a data breach. All organisations need clear processes to be able to identify and respond to a breach, and in particular, should contact anyone whose data may be affected, and find out the impact this has had on them. Taking positive action may mitigate the breach’s impact, and alleviate the fine imposed by the ICO.

Although these cases were decided under the Data Protection Act 1998, the same principles are likely to apply under the GDPR and the DPA 2018. The next case is very different, but even more worrying from an employer’s perspective.

In WM Morrisons Supermarkets plc v Various Claimants, the Court of Appeal held 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 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. In complete contrast, the Court suggested that employers should insure against data breaches committed by employees given the large potential liabilities involved. Morrisons are now appealing to the Supreme Court on this decision, so we wait with continuing interest and some sympathy.

The consequences of this decision for Morrisons are likely to be very costly, as it will be required to pay a significant level of damages to a large number of its employees. The decision also significantly broadens the scope for claims against employers, even where (as in this case) they have compliant data protection policies in place, and are subject to the vexatious actions of a rogue employee. The risk of reputational damage, as well as increased levels of fines under the GDPR, means that the consequences of the Court’s decision are potentially very far reaching.

Fines

Given that GDPR has only been in force since May 2018, it’s still too early to tell how aggressive data regulators across the EU will be, but Article 83 does stipulate provisions for assessing the severity of a breach and the appropriate punishment.

Lower tier fines should be typically handed out to those organisations who have failed to integrate data protection policies “by design and by default” into the services they offer to the public. Additionally, any organisation that fails to co-operate with a data regulator, regardless of the nature of a breach, is also likely to fall into this tier. The lower tier also marks out organisations who have failed to assign a data protection officer (when it’s clear that one is required), those organisations who fail to inform data subjects as and when their personal data is compromised, and those that fail to keep adequate records of the data they are processing.

The higher tier will apply only for the most serious GDPR infringements, including breaching subjects’ data and privacy rights, not following the basic principles of data protection, and refusing to comply with demands and requests from the data regulator, such as a refusal to comply with a previous warning or an order on processing data. How organisations handle user consent will also be considered.

Fines almost certainly won’t reach the scale outlined under GDPR for the vast majority of organisations. The regulations themselves make clear all fines issued will be administered on a case-by-case basis, in the spirit of being “effective, proportionate and dissuasive”. Regulators will take into account the nature of the infringement, its gravity and duration, the scope and nature of an organisation’s data processing, as well as the number of data subjects affected and the level of damage they have suffered.

The legislation also makes clear that intention, and scope for negligence, will be taken into account, as well as any previous efforts taken to comply, and any actions taken to mitigate damage to affected data subjects. This means organisations should document all processes, and show their working to prove to the data protection regulator that they are doing everything possible to comply. Other factors will include an organisation’s history when it comes to infringements, the categories of personal data affected, how quickly any infringement was reported, and their level of cooperation with the ICO.

The ICO has gained a reputation for being a conservative regulator, inclined towards leniency. Given the scale and severity of fines set to be imposed under GDPR – 40 times greater than the current maximum of £500,000 – as well as soundings by the Information Commissioner, Elizabeth Denham, all eyes are on the ICO as to how it will operate now that GDPR is in effect.

“While fines may be the sledgehammer in our toolbox, we have access to lots of other tools that are well-suited to the task at hand and just as effective,” Denham said in a speech in August 2017.

In the same speech, she reassured organisations that “predictions of massive fines under the GDPR that simply scale up penalties we’ve issued under the Data Protection Act are nonsense,” indicating the ICO will continue to operate in much of a similar vein to how it has been thus far, with fines a last resort. The ICO may, however, feel the need to demonstrate its new powers by imposing substantial fines, which would serve the dual purpose of bringing many private organisations into line.

The ICO is believed to have a number of ongoing investigations that have yet to materialise a sanction, including Ticketmaster, which suffered a breach on its systems in June. It recently revealed that it was receiving over 500 calls per week.

Brexit

In theory, GDPR is unaffected by Brexit, although data protection has been discussed in the Brexit negotiations as there are some key aspects of the draft EU-UK Withdrawal Agreement which concern data protection. It is encouraging that there appears to be a clear drive towards a position in which personal data can continue to flow seamlessly between the UK and the EU.

The draft Withdrawal Agreement and its accompanying Outline of the Political Declaration documents – Section VII, ‘Data and information processed or obtained before the end of the transition period, or on the basis of this agreement’ – are lengthy.

There’s a fear that in a post-Brexit world the current free flow of personal data within the EU would no longer exist, and UK organisations could be left grappling with strict data transfer rules. A significant point in the draft Agreement is that some flexibility is proposed around the deadline for agreeing a mechanism for data flows between the UK and the EU, post Brexit. The UK hopes to be awarded what is termed an ‘adequacy decision’, whereby the EU would recognise UK data protection standards to be on a par with those of the EU.

The draft Agreement does not describe a precise mechanism for how data will be transferred. It does, however, say that EU citizens’ data processed in the UK before and after the end of the transition period will be processed in line with EU data protection law. It also says that member states will continue to process data on UK citizens in line with the EU laws. So, the status quo could continue at least until the end of 2020, and perhaps beyond. It is far from clear what will happen in the event of no deal or a hard Brexit, but it is likely that some agreement will still be reached as it suits nearly everyone. In December 2018 the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 were published in draft form. Their purpose is to replace GDPR with a version that will make sense once the UK has left the EU, a “UK GDPR”. Watch this space!

Subject Access Requests (SARs)

The good news is that there has not been a general flurry of Subject Access Requests (SARs) due to the publicity of the GDPR, or the lifting of the £10 fee. There was a reasonable fear that people would suddenly take an interest in the contents of their personnel file, or what emails were saying about them. We are, however, getting reports that solicitors are using this device as a prelude to litigation. This tactic was predicted and looks like it is coming to fruition, with potential employee claimants going on fishing expeditions to see if they can find something which they can use to improve their chances of winning a claim, or find another claim to add to what they already intend to do. The most fruitful source of ’ammunition’ is a request for all emails about them which might include slightly derogatory comments about them, or, worse still, emails which show a clear intention to dismiss them, or comments which might easily be described as discriminatory. There is very little that can be done to counter this tactic, and we certainly would not advise withholding information just because it will be damaging. The best way to reduce exposure is to be very careful about what is said in writing – use the telephone and speak instead.

The good news is that if you follow our advice and keep an audit trail of an employee’s failures and/or misdemeanours and what you have done to deal with the situation, you will have a much better defence, even if you have used slightly intemperate language to describe them and their actions.

Review

Research shows that organisations struggled to be ready for the May 2018 deadline. For example, a study conducted after the GDPR came into effect showed that many organisations are failing to respond to subject access requests within the one-month time limit, with many failing to respond at all!

This could be for a number of reasons:

  • personal data is so important to how we all do business, even small changes to how its use is regulated has a major impact on operations;
  • achieving compliance requires input and effort from all areas of an organisation – not just the compliance team; and
  • guidance on how the GDPR would be enforced was not available for all aspects of the Regulation, and industry standard compliance methods were in their infancy;

The bad news for those still reeling from GDPR is that there is a draft European regulation relating to privacy and electronic communications. It is expected to be finalised by the end of 2019. Assuming a reasonable implementation period, this is unlikely to take effect until 2020 at the earliest. But like the GDPR, it could have a major impact on your business, so preparing for this in 2019 makes sense.

It will replace the current Privacy and Electronic Communications Directive 2002, and bring the law in this area more in line with the GDPR, including the same level of potential fines following a breach. Like the GDPR, moving from a directive to a regulation will also provide a greater degree of uniformity across the EU.

As legislation with a specific application (e.g. electronic communications), it will supersede the GDPR, which has a general application. It will impact how messaging services (Skype, WhatsApp, Facebook, Messenger, etc.), telephone calls, SMS and emails are regulated. The biggest impact could be on businesses that send B2B marketing emails.

All this means that, data protection compliance has no respite and is going to be an ongoing journey.

 

You are welcome to raise any concerns with our Consultants, who would be pleased to advise you on any element of the issues arising from this newsletter.

 

Sports fans may have been puzzled by the ongoing saga of Sean Edwards, who was announced last summer as the new coach of Wigan rugby league club; the team he played for before taking up a successful career as a coach in rugby union. Unusually it was agreed that he would be taking up the role in 2020, at the end of his contract with Wales after the World Cup. Mr Edwards recently announced that he was ’considering his options’ as he had never signed a contract with Wigan. Not surprisingly it has emerged that he is being pursued by several rugby union teams, but would this put him in breach of contract?

Peter Stanway, our BackupHR™ legal expert comments:

The short answer is yes, as an ‘oral contract’ would be binding. Whether Wigan would want to have a coach who preferred to be elsewhere is another matter, but there was clear evidence at the time that he had agreed a deal. There is no clear legal requirement under English law for an employee to have a signed contract with his or her employer. Oral contracts are binding, but the key issue that needs to be resolved is whether or not an employment contract was formed between the two parties. Just agreeing a start date and a salary is probably insufficient. The legal requirement is certainty, and terms and conditions of employment and job description/ responsibility can be very important, especially in senior management roles. In the absence of a signed contract, these requirements are more difficult to prove.

We have always advocated providing a written statement of terms and conditions of employment (aka a contract) at the same time, or very shortly after, a brief offer letter. We also recommend issuing a copy of the employer’s handbook of policies, often called an Employee or Company Handbook, not least because we would expect such a document before giving notice to a current employer, but mainly because it will (or may) contain very important information that may influence decisions about whether to accept the job or not. We would also recommend doing so because it just makes the potential employer look that much more professional.

Employers currently have up to two months to give new employees a Section 1 statement (contract of employment), although it is still common to discover that all an employer has provided is an offer letter. The problem we have found is that in the absence of a proper written contract, the employer can be left on weak legal ground in the event of a dispute. Employers who have relied on the 2-month rule, or just ‘not got around to it’, do not really have a leg to stand on if there is then a dispute early into the employee’s employment.

In April 2020, the Government is proposing that a Statement of Terms & Conditions of Employment must be issued on day one (or earlier). This was not prompted by the Government’s desire to protect employers, but pressure from employee groups, as well as, wanting to make litigation through the already congested court/tribunal system less likely.

The change is not just to the timing of issuing employment contracts, but it will also apply to people classed as workers, i.e. the ‘not genuinely’ self-employed. We are recommending to our clients that they should anticipate the changes, and start to issue new employees/workers with their documentation before employment starts, or if not feasible to do so then, as part of induction training on day one.

Actions

  • Consider the timing of when to issue contractual documentation – we would advise prior to appointment.
  • Review induction training to include clarification of key terms and conditions of employment, and all relevant employment policies and procedures.
  • Review whether such documents are legally up-to-date and comprehensible.
  • Consider carefully what to do about workers.

 

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.