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Data Protection2

The General Data Protection Regulations (GDPR)

The GDPR is set to kick off on 25 May 2018.  It increases the obligations on all businesses to ensure the safety of personal information of individuals stored on their systems, whether they are customers, suppliers or employees.

The GDPR will apply to data ‘controllers’ (employers) and now data ‘processors’ (employees) Previously, the Data Protection Act only applied to controllers. Processors involve the storing, retrieving and erasing of data. Controlling involves manipulation in terms of interpretation or decision based data.

The GDPR applies to personal data, but the definition is wider than under the current Data Protection Act (DPA) The regulations place greater emphasis on the documentation that data controllers must keep, to demonstrate their accountability.

Many of the GDPR’s main principles are similar to those in the current Data Protection Act (DPA) So if your business is complying properly with the present law, then most of your current compliance will remain valid and can be the starting point to build from.

However, there are new elements and significant enhancements.  Your business will have to do some things for the first time, and a number of things differently.  It is essential to start planning your approach to GDPR compliance now, with the rules coming into effect in May 2018.

As a starter you will need to gain ‘buy in’ from key people in your organisation.

You may need, for example, to put new procedures in place to deal with the GDPR’s new transparency and individuals’ rights provisions. The cost of which depends on the complexity of your business.

One key new feature is having to show how you comply with the rules. Evidencing compliance is known as the ‘accountability’ principle.

Employers: we suggest as a start that you map out where you hold personal data and from there you can establish what consents and extra steps you need to put in to comply with these new Regulations.

Contact us: we can assist with GDPR compliance for a fixed fee.

Notice of Termination

Setting aside Unfair Dismissal concerns an employer needs to serve notice lawfully under a contract of employment to bring it to an end, apart from a dismissal for gross misconduct.

An employer must follow the notice periods in an employment contract and if this is less than the statutory minimum, set out in section 86 of the Employment Rights Act, then the statutory notice will apply. This is when an employee has been employed for more than two years, but less than 12 years, an employee is entitled to one week’s notice for each complete year of continuous employment.

But how should an employer give notice?

Tell them, though sometimes it is not always that straightforward. It is better to inform them in person or hand over the notice letter to them. In the case of Gisda Cyf v Barratt, the Supreme Court found that even though the employee was dismissed without notice, the effective date of termination did not take place until the employee had read the letter.

Even, if an employee is on holiday, as in the case of Newcastle upon Tyne NHS Foundation Trust v Haywood. The notice was not effective until she had returned from holiday and read the letter. Unless there is an express term in the contract which specifies when the notice takes effective an employer needs to be careful when sending the termination letter by post.

Pay in lieu of notice (PILON) clauses

This is a useful clause to bring a contract to an end, especially if you do not want an employee to work their notice. However, an employer needs to tell an employee that they are making a pay in lieu of notice in accordance with the contract of employment. In the case of Societe Generale, London Branch v Geys, the employment contract stated that the ‘[bank] reserves the right to terminate your employment at any time with immediate effect by making a payment in lieu of notice…’ . It was found that the employee would not be expected to check his bank account regularly in order to discover whether he is still employed. The contract and termination letter needed to be worded more clearly.

If an employer wants to terminate immediately and there is no PILON clause. there is a risk that the employee does not ‘accept’ the breach of contract. although this is an unusual situation it does happen that an employee would prefer to stay in work to look for another job during the notice period.

Notice pay

Notice pay is usually set out in the contract or should abide with the statutory notice period. However, there is a very strange quirk in the ERA, section 87(4) where the employer does not have to pay notice to an employee at the normal rate if they are absent for illness or family leave, where the notice to be given by the employer under the contract is at least one week more than the statutory notice.

Penalty Clauses in Employment Contracts

One area when an employment contract may be unenforceable is when there is a penalty clause which is found to be void.

Penalty clauses are rare. It is a clause where it imposes a detriment on the employee in the event of he / she breaches the contract which is out of proportion to any legitimate interest of the employer,

What type of employment clauses might be a penalty clause?

1. Repayment clauses – these may include for example the repayment of training costs, relocation allowances or enhanced maternity
pay if an employee does not stay in employment for a particular period of time. Courts normally find these clauses reasonable if they are not too excessive and the employee was clear about them.

2. ‘Liquidated damages’ – these are clauses in a service agreement, when payment is made to a director on breach of contract, change of ownership of the company or where a fixed term is not renewed. If the liquidated damages are excessive they might amount to a penalty clause.

3. Bonus clauses, if they withhold a bonus in certain circumstances

4. Clauses don’t always need to involve the payment of a sum of money to be a penalty, any benefit will do.

5. Indemnities in settlement agreements where the employee needs to repay compensation if they bring a Tribunal or breach perhaps a restrictive covenant. Such clauses sometimes are held to be unenforceable.

However, over the years the courts have been reluctant to strike down penalty clauses.

The employer and employee can assess, in advance, any likely loss that may occur if a contract is broken. If the amount is reasonable and a genuine pre-estimate of the loss, then it will be enforceable – this is known as ‘liquidated damages clause’. Much will depend on the facts and circumstances of the termination of employment, and the amounts repayable.

Contact us if you need any help with Employment Contracts

Modern Slavery – what does a business need to do to comply?

Modern Slavery Act – What does a Company need to do to comply?

The Modern Slavery Act 2015 came into force in October last year and applies to financial years ending on or after 31 March 2016.

It requires large organisations doing business in the UK with a minimum total turnover of £36 million per year to publicly state each year the action(s) they have taken to ensure that their supply chains are slavery free.

However, many smaller companies below this threshold are being asked when they tender for work to show they can comply with the regulations.

Contracts are often not being renewed or tender documents are not successful because the supplier cannot show they can comply with the Modern Slavery Act obligations.

What do we need to do to comply?

At a bare minimum a Company must publish a Modern Slavery Act statement on their website. This can actually state that they do not comply with the Modern Slavery Act or it can be a Modern Slavery Act Policy.

We can put together a Modern Slavery Act statement for small business for a fixed price of £400 bespoke to your industry ready to publish on your website.

What should a Modern Slavery Act statement contain?

We would recommend that the slavery and human trafficking statement must include one of the statements below:

• the steps the organisation has taken during the financial year to ensure that slavery and human trafficking is not taking place in any of its supply chains, and in any part of its own business; or
• that the organisation has taken no such steps.

The statement may contain other information, such as the organisation’s structure, its due diligence processes in relation to slavery and human trafficking and any training on the subject that is provided to its employees.

Time limit

The Home Office guidance provides that a business is encouraged to make it within six months of the end of the previous financial year.

Next Steps

As part of your Modern Slavery Act Policy it is advisable to map your supply chain in terms of industry type, countries and size of the contract to decide whether you add on an additional section to your supplier tendering documents to ask Modern Slavery Act questions.

Employment Law Support can assist you with your Supplier Questionnaire and Supplier Risk Assessment bespoke to your industry or a fixed price of between £350 to £600 depending upon the depth of the questionnaire needed.

We would advise you to also update your terms and conditions to include a Modern Slavery Act clause.

Employers: even smaller companies are being asked to publish a Modern Slavery Act Statement if they are tendering for work with certain customers.

We can provide further information on this topic and can also assist organisations in preparing a compliant statement for a very competitive fixed price.

Contact us if you need help with a Modern Slavery Act Statement and associated documents

Whistleblowing – meaning of worker

The Public Interest Disclosure Act 1998, or more commonly called the Whistle blowing Act, creates two levels of protection for whistle blowers.

The dismissal of an employee will be automatically unfair if the main reason, for dismissal is that they made a “protected disclosure”. The Act also protects and employee for being subjected to any detriment on the ground that they have made a protected disclosure.

The definition of “worker” under the Whistle Blowing Act is wider than the definition under the Employment Rights Act 1996. However, the recent case of McTigue v. University Hospital Bristol NHS Foundation Trust has highlighted just how widely the courts are willing to apply the definition.

The Definition of “worker”
A “worker” is defined by section 230(3) ERA 1996 as: “an individual who has entered into or works under (or, where the employment has ceased, worked under) –
a contract of employment; or
any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”

However, under section 43K ERA 1996, the usual definition of worker is extended in relation to the whistle blowing provisions to include a number of individuals who would not otherwise be covered. This additional definition includes agency workers and individuals supplied via an intermediary.

The case was helpful in some guidance on how to determine whether an individual is a worker within section 43K(1)(a)

A number of questions that should be addressed when determining whether an individual is a worker within section 43K(1)(a) are helpful such as:
– For whom does or did the individual work?
– Is the individual a worker as defined by s.230(3) in relation to a person or persons for whom the individual worked? If so, there is no need to rely on s.43K in relation to that person.
– If the individual is not an s.230(3) worker in relation to the respondent for whom the individual works or worked, was the individual introduced/supplied to do the work by a third person, and, if so, by whom? If so, were the terms on which the individual was supplied to do the work determined by the individual? If the answer is yes, the individual is not a worker within s.43K(1)(a).
If the answer is no, were the terms substantially determined (i) by the person for whom the individual works or (ii) by a third person or (iii) by both of them?

If any of these is satisfied, the individual does fall within the subsection.
In answering question (e) the starting point is to look at the the contract. Also look at the agency contract.

If the company alone mainly determines the terms on which the individual worked in practice (whether alone or with another person who is not the individual), then the company is the employer within s.43K(2)(a) for the purposes of the protected disclosure provisions. There may be two employers for these purposes under s.43K(2)(a).

Key points from this case: an agency worker may be able to bring a whistle blowing claim against an end user, provided that the terms of engagement are not substantially determined by the worker himself/herself; and that the fact that an individual may be a section 230(3) worker in relation to the agency does not automatically prevent that individual from being a worker under the extended definition.

We can assist with whistle blowing questions

Flexibility Clauses in Contracts – do they give employers power to vary anything?

Employers look for some ‘wriggle room’ in contracts by including ‘flexibility clauses’ when issuing contracts of employment.

These are express terms in a contract which can enable employees to make changes to an employee’s terms and conditions.

Flexibility clauses can be specific such as dealing with defined issues, such as working hours, or be used more generally to change a contract in ways an employer may not have predicted.

What about Consent?

An employer may not vary the terms of a contract without the consent of an employee.  However, if a contract already has a flexibility clause in it, then it could be said that the employee has already given consent for changes.

However, it is not wise to simply vary a contract even if it does have a specific flexibility clause in it which seems to give an employer the power to make the change as employers need to be reasonable in the changes they make in using flexibility clauses and case law suggests that tribunals and courts commonly place a narrow interpretation on what such clauses allow. Either way, legal advice in such matters is always a good idea.

Still necessary to consult

Employers should consult employees on the intended change – a failure to do so could be considered a breach of trust and confidence implied in the contractual relationship between the two, and may lead to claims of breach of contract or constructive dismissal.

Employees may have concerns about a change, and employers should take these on board and seek to resolve problems or find routes to a compromise before implementing a change, even if it is provided for by the contract.

Involving employees makes good business sense, as it drives up levels of employee engagement and motivation – and finding a compromise in a difficult situation is the best way of preserving good employment relations at work.

Restrictive Covenants – are they enforceable?

The High Court found in Bartholomews Agri Food v Thornton [2016] EWHC 648 (QB) that the reasonableness of an individual’s restrictive covenants will be judged at the point they were entered in to.

Therefore, if a junior employee is signed up to restrictions that are overly restrictive in terms of their breadth and/or their duration then they will simply be void as being in restraint of trade – irrespective of any subsequent promotion.

This means that even if a junior employee is promoted to a higher position where the restrictive covenant is therefore reasonable by the fact that their employment contract had covenants in them which were unreasonably wide may risk the fact that the employer cannot get the benefit of them even when the employee holds a position which would warrant the wider restrictions being in place.

Here the High Court also concluded that the restrictive covenant would have been void even if entered in to when Thornton became a senior employee. It restricted Thornton from undertaking work for any of Bartholomews’ clients regardless of his own dealings with them. On the facts, Thornton worked with just over 1% of the company’s clients (in terms of turnover) but the restriction had no personal nexus (whether that was working for and/or knowledge of the clients). Thus it was a broad, blanket restriction that was unenforceable.

As a reminder: Restrictive covenants are void as restraint of trade other than where they are necessary to protect the legitimate business interests of a company. Restrictions should always be tailored to the individual’s role as at the time they are entered into.

The restrictions should be the minimum necessary for the particular legitimate business interests they are said to protect. However, it is still possible to protect a business with bespoke restrictions – so make sure you seek help in drafting them.

Eye Tests – Employers responsibility?

The Health and Safety (Display Screen Equipment) Regulations 1992 explains what you, as an
employer, may need to do to protect your employees from any risks associated with Display Screen Equipment (DSE) (ie computers and laptops).

These Regulations only apply to employers whose workers regularly use DSE as
a significant part of their normal work (DSE users).

These Regulations do not apply to workers who use DSE infrequently or for
short periods of time.

If you have DSE users, you must:
■■ analyse workstations to assess and reduce risks;
■■ make sure controls are in place;
■■ provide information and training;
■■ provide eye and eyesight tests on request, and special spectacles if needed;
■■ review the assessment when the user or DSE changes.

What are the health risks with DSE?
Some workers may experience fatigue, eye strain, upper limb problems and
backache from overuse or improper use of DSE. These problems can also be
experienced from poorly designed workstations or work environments. Helping spot these risks help make workplaces safer and better places to be.

Advice: it is suggested that an employer who has DSE users consider the following:

Pay for the cost of an eye test every two years and the cost of a basic set of specs (usually around £100 or perhaps 75 contribution towards glasses if deterioration due to DSE use – the optician is able to assess this). There’s no requirement to pay for designer frames- that’s down to the employee.

Sometimes employers may be able to have a corporate agreement with an optician to provide fee eye tests for employees and family members if they use their glasses.

 

 

 

 

Modern Slavery Act Statement

The Modern Slavery Act 2015 came into force in October last year and applies to financial years ending on or after 31 March 2016.

The Act requires large organisations doing business in the UK, with a minimum total turnover of £36 million per year to publicly state each year the action(s) they have taken to ensure that their supply chains are slavery free.

We would advise that the statement must include or state as follows:

  • the steps the business has taken during the financial year to ensure that slavery and human trafficking is not taking place in any of its supply chains, and in any part of its own business; or
  • that the organisation has taken no such steps.

The statement may contain other information, such as the organisation’s structure, its due diligence processes in relation to slavery and human trafficking and any training on the subject that is provided to its employees.

While there is no set time limit in which to make the statement, the Home Office guidance provides that a business is encouraged to make it within six months of the end of the previous financial year.

If the organisation has a website, it must publish the statement on that website and include a link to the slavery and human trafficking statement in a prominent place on the homepage.

Employers:  even smaller companies are being asked to publish a Modern Slavery Act Statement if they are tendering for work with certain customers.

We can provide further information on this topic and can also assist organisations in preparing a compliant statement.

Contact us if you need help with a Modern Slavery Act Statement

Sunday Trading

Sunday Trading

The government has decided to move ahead with its plan to loosen the restriction on Sunday trading hours in England and Wales, despite opposition.

At the moment, large shops in England and Wales (ie those with over 280 square metres of floor space) are allowed to open for only six hours on a Sunday, between 10 am and 4 pm.

The government is proposing to allow councils to extend those hours, so retailers can have the flexibility to compete for trade. Councils will also be able to restrict the longer hours to certain zones, such as high streets and city centres, although there are fears that the additional hours will benefit large chains to the detriment of independent high street stores.

An additional proposal is to make it easier for those who work on a Sunday to opt out of doing so. At the moment, all employees can opt out of Sunday working by providing three months’ notice. Under the new proposal, the required period of notice to opt out would be reduced to one month.

Contact us if you need any help with zero hours or part-time contracts