Category Archive: Employment

Brexit: Deal on EU citizens agreed in principle

On 8 December 2017, an agreement in principle was reached between the UK and the EU on the future rights of EU citizens currently living lawfully in the UK.  In short, the Government has announced that these individuals will be able to stay in the UK and enjoy broadly the same rights and benefits as they do now.  This agreement applies equally to UK citizens currently living in the EU. However, a word of caution – this agreement is subject to the important caveat that ‘nothing is agreed until everything is agreed’.  For now, the Government maintains that EU citizens do not need to take any steps at this stage to establish immigration status.

The key aspects of agreement on EU citizens include:

  • The key date for establishing rights will be 29 March 2019.
  • EU citizens who legally reside in the UK before 29 March 2019 will be able to stay in the UK, and close family members will be able to join them after the UK has left the EU (where that relationship existed before, and continues after, 29 March 2019).  These family members include spouses, unmarried partners, children, grandchildren, dependent parents and grandparents.
  • Individuals already holding a permanent residence document on 29 March 2019 will have that document converted into a new document free of charge, subject only to verification of identity, a criminality and security check and confirmation of ongoing residence.
  • Individuals who have acquired permanent residence rights can leave the UK for up to 5 consecutive years without losing their residence rights.
  • EU citizens with settled status and temporary permission to stay will continue to have the same access as they currently do to healthcare, pensions and other benefits.
  • The implementation and application of citizens’ rights will be monitored in the UK by an independent national authority; its scope and functions to be discussed in the next phase of negotiations.
  • Administrative procedures for applications for status will be transparent, smooth and streamlined. In particular, the UK will not be able to require anything more than is strictly necessary and proportionate to determine status.  Application forms will be short, simple and user friendly, and a proportionate approach will  be taken to those who miss a deadline for application where there is a good reason. A period of at least 2 years will be allowed to submit status applications.
  • The Government will announce further details on the administrative processes in the first half of 2018.  Individuals can be kept up-to-date via the website Status of EU citizens in the UK: What you need to know
  • Details of the immigration rules for EU citizens who arrive after 29 March 2019 and during the implementation period are yet to be agreed.
  • The Government has published case studies to help individuals determine their status rights.

For further information, or to discuss how we can help manage the impact of Brexit on EU nationals in your workforce, please contact Kate Hodgkiss, or your usual DLA Piper contact.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/brexit-deal-on-eu-citizens-agreed-in-principle/

ECJ: A worker must be able to carry over paid annual leave when an employer does not allow him to exercise that right

The ECJ held today in King v The Sash Window Workshop that a worker must be able to carry over and accumulate rights to paid annual leave when an employer does not put that worker in a position in which he is able to exercise his right to paid annual leave. EU law precludes the requirement that a worker must actually take leave before establishing whether he has the right to be paid in respect of it. The decision could have a significant impact on the worker status claims currently making their way through the courts.

Mr King worked for The Sash Window Workshop on the basis of a “self-employed commission-only contract” from 1999 until he retired in 2012. When he took annual leave, it was unpaid. Following termination of his contract, Mr King sought to recover payment for his annual leave, both taken and not paid and accrued but not taken, for the entire period of his engagement. The Employment Tribunal found that Mr King was a worker and that he was entitled to payment in lieu of leave. On appeal, the Court of Appeal made a reference to the ECJ asking whether, in the case of a dispute between a worker and employer as to whether the worker is entitled to annual leave with pay, it is compatible with EU law if the worker has to take leave first before being able to establish whether he is entitled to be paid.

In today’s judgment, the Court notes that the right for every worker to have paid annual leave must be regarded as a particularly important principle of EU law. The purpose of that right is to enable the worker to rest and to enjoy a period of relaxation and leisure. However, a worker faced with circumstances liable to give rise to uncertainty regarding remuneration during the leave period is not able to fully benefit from that leave and such circumstances are liable to dissuade the worker from taking his annual leave. The Court notes that any practice or omission of an employer that might have such a deterrent effect is incompatible with the purpose of the right to paid annual leave.

The right to an effective remedy would not be guaranteed if, in a situation in which the employer grants only unpaid leave to the worker, the worker would be forced to take leave without pay and then bring an action to claim payment for it.

The Working Time Directive therefore precludes a situation in which the worker has to take his leave before establishing whether he has the right to be paid in respect of that leave.

The Court also concluded that EU law precludes national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave.

The Court referred to its previous case law in the context of  workers who had been prevented from exercising their right to paid annual as a result of their absence from work due to sickness, according to which a worker who has not been able, for reasons beyond his control, to exercise his right to paid annual leave before termination of the employment relationship is entitled to an allowance in lieu. In that context, in order to protect the employer from the risk that a worker will accumulate long periods of absence, and from the difficulties those periods might entail with regard to the organisation of work, the Court found that EU law does not preclude national provisions or practices limiting the accumulation of entitlements to paid annual leave by a carry-over period of 15 months, at the end of which the right is lost.

By contrast, in circumstances such as those in the present case, the Court considered that protection of the employer’s interests is not necessary  The Court therefore found that unlike in a situation of accumulation of entitlement to paid annual leave by a worker who was unfit for work due to sickness, an employer that does not allow a worker to exercise his right to paid annual leave must bear the consequences. The fact that an employer might consider, wrongly, that the worker was not entitled to paid annual leave is irrelevant.

As a result, in the absence of any national statutory provision establishing a limit to the carry-over of leave in accordance with the requirements of EU law, to accept that the worker’s acquired entitlement to paid annual leave could be extinguished would amount to validating conduct by which an employer was unjustly enriched to the detriment of the purpose of that Directive.

The judgment of the ECJ raises the stakes for employers who engage their workforce on a self-employed basis where there is a risk that they will be found to be workers. Where an employer has not made a facility available for workers to be able to take their paid annual leave (for example, where the employer denies the worker is entitled to paid leave), then any leave not taken would carry over to the next leave year, indefinitely, until the employee is permitted to take their accrued paid leave, or until termination. The two-year back pay limit under the Deduction from Wages (Limitation) Regulations 2014 does not apply in that situation as the claim is not for back pay but for payment due on termination.

However, the ECJ’s decision case does not explicitly deal with the situation where the worker has taken leave and not been paid. In such cases the existing rules in UK legislation and case law apply: the non-payment is a deduction, a series of deductions is broken by a three-month gap, and back pay is limited to two years.  There must be a risk, following today’s decision that these UK rules are incompatible with EU law, but it is unlikely that there could be a definitive ruling to that effect before the UK leaves the EU.

 

Permanent link to this article: http://www.dlapiperbeaware.co.uk/ecj-a-worker-must-be-able-to-carry-over-paid-annual-leave-when-an-employer-does-not-allow-him-to-exercise-that-right/

Government select committees publish draft bill on worker status

The Work and Pensions (WP) and Business, Energy and Industrial Strategy (BEIS) Committees yesterday published a joint report, A framework for modern employment, (Report) which contains a draft Bill which aims to take forward some of the central proposals from the Taylor Review of modern working practices, which published its report in July.

The Report makes recommendations on the following issues which the Committees considered should be tackled in primary legislation:

  • Clearer statutory definitions of employment status: The Report recommends that the Government legislates to introduce greater clarity on definitions of employment status which should emphasise the importance of control and supervision. The draft Bill proposes amending s.230 of the Employment Rights Act to include a list of factors which the courts may have regard to in determining employment status, including whether the contract places an obligation on the individual to perform work personally, the potential to control how work will be carried out in relation to factors such as discipline, the rate of pay and when the work will be carried out, whether the individual is integrated into the business, financial risk and whether the individual is prohibited from working for others. The definition of worker status would remain the same apart from removing the requirement for personal service but the Bill provides that for the purposes of determining worker status the courts may have regard to the same factors as for employment status (except personal service) and also (i) whether the worker was engaged in marketing their business before the contract came into existence and (ii) whether any substitution clause is capable of being freely exercised in practice. The Bill also proposes a new definition of independent contractor; someone who is neither an employee or a worker.
  • Worker status by default: The Report recommends that companies with a self-employed workforce above a certain size should have the burden of establishing that an individual is self-employed in a worker status case, although the Bill as drafted would establish worker status by default in all status cases.
  • Higher National Minimum Wage for non-guaranteed hours: the Report recommends that the Government work with the Low Pay Commission to pilot a pay premium on the NMW and NLW for workers who work non-guaranteed hours. The intention is that this would operate essentially as an overtime rate for hours worked over the worker’s guaranteed hours.
  • Extension of the allowance for break in service for continuous service: The Report recommends that gaps in employment of up to 1 month (rather than the current 1 week) should not break continuous service.
  • Employment tribunals: The Report recommends that the Government creates an obligation on employment tribunals to consider the use of higher, punitive fines and costs orders if an employer has already lost a similar employment status tribunal case and that Government takes steps to enable greater use of class actions in disputes over wages, status and working time.
  • Flexibility and the National Minimum Wage: The Taylor Review raised concerns regarding the interaction of the NMW legislation and worker status for so-called ‘gig’ economy workers on digital platforms, meaning that to avoid the potential for workers making themselves available for work at periods of low demand but still being entitled to NMW, platforms would have to implement shift systems rather than allowing individuals to work when they want. The Taylor Review recommended that existing piece rate legislation could be adapted to avoid this risk and maintain flexibility. The Committees raised concerns that this proposal risked undermining the NMW and the Report recommends that the Government rules out introducing any legislation that would undermine the NMW.

The Report also makes the following recommendations for secondary legislation:

  • Extension of the entitlement to a written statement of employment particulars to workers from day 1 of a new job: The statement would need to be given within 7 days and contain a clear statement of employment status and details of the rights and entitlements of the individual by reference to that status.
  • Lowering the threshold for Information and Consultation forums: currently organisations must have 50 or more employees (not workers) and at least 10% and a minimum of 15 employees must request a forum. The Report recommends that workers should count towards both thresholds and the threshold should be reduced from 10% to 2% of the workforce.
  • Ending the Swedish derogation: the Swedish derogation permits an opt-out from the right for agency workers to have equal treatment in relation to pay to comparable employees where the agency workers receive pay from the agency between assignments. The Report recommends that Swedish derogation be abolished and that the Employment Agency Standards Inspectorate should be given the powers and resources necessary to enforce the remainder of the Agency Worker Regulations 2010.
  • Stronger penalties for repeat or serious breaches of employment legislation: the Report recommends that the Government bring forward stronger and more deterrent penalties including punitive fines and expands the ‘naming and shaming’ regime which applies to NMW breaches to all non-accidental breaches of employment rights.
  • Greater resources for the Director of Labour Market Enforcement and the main enforcement agencies to undertake investigation and enforcement.

It is important to stress that this is not a Government Bill and the Report acknowledges the main obstacle to taking forward legislation at this time, namely the lack of Government resources in light of Brexit. A formal Government response to the Taylor Review is expected before the end of the year, which may make clear what, if any, legislative response there will be to the Taylor Review in the near future.

In the meantime, it is expected that the Budget on Wednesday will include proposals to extend ‘off-payroll working’ rules from the public sector to the private sector, which would require companies to deduct tax and National Insurance Contributions automatically from the gross pay of self-employed workers who work through personal companies. Employment status and the rights which attach to the different categories of worker look set to continue to be major issues into 2018.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/government-select-committees-publish-draft-bill-on-worker-status/

Equal Pay Day puts the spotlight on gender pay gaps

10 November 2017 is Equal Pay Day – the day when women effectively stop earning for the remainder of the year compared to men. This is based on the current (mean) gender pay gap which the ONS has revealed to be 14.1% for women working full-time.

The Fawcett Society, the organisation behind the concept of Equal Pay Day, is leading a campaign urging politicians and employers to make a ‘pay gap pledge’ to close the gender pay gap for good.  Following hot on the heels of recent legislation requiring employers to publish their gender pay gaps by April 2018, this brings the issue of gender pay into sharp focus and reinforces the importance employers need to attach to tackling their gender pay gaps.

In short, employers of 250 or more employees must publish prescribed information relating to their gender pay gaps on both their own websites and on the Government’s specially designated website by 4 April 2018. The Government estimates that this will apply to around 9,000 employers with approximately 15 million employees.

To date, just 219 employers have embraced the task and published their information. This is available to view via the Government’s gender pay gap viewing service. The contrast in data is stark, ranging from a mean hourly pay gap for one employer of -35.4 (meaning that the average hourly rate of pay for is higher for women than for men – for every £1 being paid to a woman, a man is receiving approximately 65p) up to a gap of +54.2 for another employer (demonstrating that the average rate of pay is higher for men than for women – for every £1 being earned by a man, a woman is receiving approximately 46p). Some statistics of particular interest are those of the Commission for Equality and Human Rights (mean gap of -7.5); ACAS (mean gap of +7.1) and the Department for Education (mean gap of +5.3).

It is important to remember that whilst a gender pay gap may raise the profile of equal pay within an organisation and lead to greater scrutiny of pay by employees, a pay gap is not the same as unequal pay. There may be many reasons for a pay gap  including having a higher proportion of women to men in part-time positions, and similarly there being fewer women than men in senior roles in the organisation (and vice versa). Transparency and communication of pay structures may help assist employees to understand the reasons for any gap and, whilst there is no statutory obligation to report the reasons, many employers are taking the opportunity to publish a narrative alongside their figures. At the very least, a pay gap should  act as an impetus for organisations to query the reasons behind it and to start to work towards strategies for reducing it.

Mean bonus gaps reported so far also vary hugely from -184.6 to +467, perhaps significantly impacted by the way in which businesses are structured and suggesting that where one gender is dominant in senior positions where higher bonuses are likely to be paid, the gap will be skewed accordingly.

With less than 5 months now to go until the deadline when all affected employers must publish their gender pay gap information, it seems that there will be a flurry of last-minute activity. Employers who have yet to get to grips with their obligations should now make this a priority. The legislation is complex, numerous calculations must be made and the data must be officially signed off by a director (or equivalent).

For assistance on reporting your gender pay gap, or for a copy of our gender pay gap publications, please contact Kate Hodgkiss or Clare Gregory in our UK Employment law team, or your usual DLA Piper contact.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/equal-pay-day-puts-the-spotlight-on-gender-pay-gaps/

Government publishes details of administrative processes for EU nationals

The Government has today published further information on the new administrative processes which will apply to EU nationals in the UK who wish to apply for settled or temporary status post-Brexit. In brief:

  • The future status and rights of EU nationals will be defined in the Withdrawal Agreement (WA).  The WA will be incorporated into UK law, enabling EU citizens to enforce those rights.
  • A new application system is being designed from scratch.  Applications will be for either (1) settled status – 5 years’ continuous lawful residence as a worker, self-employed person, student, self-sufficient person of family member thereof; or (2) temporary status – lawful residence before a specified cut-off date, with settled status available after 5 years’ residence.
  • The application process will be streamlined, user-friendly and digital, utilising existing government data to minimise the documentary evidence an individual is required to supply. Proof of comprehensive sickness insurance will no longer be required for those who are studying or economically inactive. It will also no longer be necessary to account for every trip taken in and out of the UK.
  • The cost of the application will not exceed the cost of a British passport.
  • EU nationals who already have a Permanent Residence certificate will be subject to a simplified process with a reduced fee.
  • EU nationals will be given sufficient time to make their application post-Brexit – estimated to be 2 years. The Government is also planning to set up a voluntary process which can be used pre-Brexit for individuals who want to establish their new status as early as possible.
  • There will be an administrative review system to resolve any challenges to status decisions and, after that, recourse to the courts as now.

Full details can be found on the Government website, Status of EU citizens in the UK: What you need to know.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/government-publishes-details-of-administrative-processes-for-eu-nationals/

Independent review calls on employers to make mental health a priority

An independent review into mental health in the workplace, commissioned by the Government in January 2017, published its comprehensive report today. It calls for workplace mental health to now be a priority for organisations across the UK.

The Thriving at work: Stevenson/Farmer review of mental health and employers report, which also takes into account the recent Taylor Review of Modern Working Practices, highlights that the UK is facing a significant challenge in respect of mental health at work which is leading to a high human cost in terms of poor mental health and suicide. In addition, the report states that poor mental health has impacts for employers, the Government and the economy as a whole, with 300,000 people with a long-term mental health condition losing their jobs every year.

The report sets out its vision which is to see changes, implemented through a 10 year plan, which will result in:

  • Employees in all types of employment having good work which contributes positively to their mental health, society and the economy;
  • Everyone having the knowledge, tools and confidence to understand and look after their own mental health, and the mental health of others;
  • All organisations, whatever their size, being equipped with the awareness and tools to address, and prevent, mental ill-health caused or worsened by work, and to support individuals with a mental health condition to thrive in the organisation with awareness of how to get access to timely help.

To achieve this, the report sets out a framework for organisations to implement quickly. These are described as the ‘mental health core standards’:

  • Produce, implement and communicate a mental health at work plan;
  • Develop mental health awareness among employees;
  • Encourage open conversations about mental health and the support available when employees are struggling;
  • Provide employees with good working conditions and ensure they have a healthy work life balance and opportunities for development;
  • Promote effective people management through line managers and supervisors;
  • Routinely monitor employee mental health and wellbeing.

The report also highlights a series of more ambitious ‘enhanced’ standards for public sector employers, and private sector employers with more than 500 employees. These are to:

  • Increase transparency and accountability through internal and external reporting;
  • Demonstrate accountability;
  • Improve the disclosure process;
  • Ensure provision of tailored in-house mental health support and signposting to clinical help.

The report states that a number of factors will help implementation of the core and enhanced standards, including increasing employer transparency to expand the breadth and depth of employer action on mental health; engaging trade unions, industry groups, and professional/regulatory bodies; and using digital tools and products to facilitate interventions in the workplace. In terms of transparency, the report recommends new legislation and guidance to encourage employers to report on workplace mental health on their websites and the adoption of workplace mental health indicators in employer rating initiatives.

All employers will need to read today’s report and consider the impact on their organisation; the report is clear that it is aimed at all businesses – small, large, private, voluntary or public sector. Some businesses may already be well on the road to achieving the recommended standards; others will only be just starting their journey, and may not yet have taken even a first step. Employees will need to consider what is achievable in their own particular business and tailor the standards to fit their organisation, ensuring that all levels and types of role are taken into consideration. Creating a culture and environment, embedded at the highest level, where both employers and employees are open to discussing the issues is key; and the time to start engaging with this is now.

If you would like guidance or advice in respect of the key recommendations contained within the report, please contact Adam Hartley (adam.hartley@dlapiper.com) or your usual DLA Piper contact.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/independent-review-calls-on-employers-to-make-mental-health-a-priority/

Brexit: Latest developments on the future of EU nationals working in the UK

Employers who are monitoring the latest Brexit negotiations on the future status of EU nationals working in the UK may welcome the reassurance delivered by the Prime Minister in Florence recently that it remains one of her ‘first goals…. to ensure that [EU citizens] can carry on living…as before’, and that ‘the guarantee on….rights is real’.

The Prime Minister says that ‘significant progress’ has been made, and this appears to include a concession that the UK courts will be able to take into account judgments of the European Court of Justice with a view to ensuring consistent interpretation around underlying EU law.  The UK is also offering to guarantee rights of return for settled EU citizens in the UK, who leave the UK, in return for the same rights for UK nationals living in the EU.

In practical terms, however, for now little has changed in relation to the impact of EU nationals currently working in the UK.  Home Office advice remains that there ‘is no need for EU citizens living in the UK to do anything now’, although individuals are encouraged to sign up for the email alerts so that they can be notified of any developments as they happen.

The Government’s proposals for the new immigration regime were outlined in June 2017, and it says that it will now be engaging on the design and delivery of a proposed Settlement Scheme, which it is committed to making as streamlined and user friendly as possible.

Employers therefore need to keep a watching brief to ensure they understand the latest developments and the potential impact on any EU nationals in their workforces.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/brexit-latest-developments-on-the-future-of-eu-nationals-working-in-the-uk/

Draft Data Protection Bill published

Yesterday the Government published the draft Data Protection Bill which will replace the Data Protection Act 1998, supplement the General Data Protection Regulation in certain areas and provide more detail on how the GDPR will be enforced in the UK . DLA Piper’s Privacy team has published a blog post on their Privacy Matters blog which explains the key provisions of the Bill.

The Bill will have a significant impact on how employers deal with HR data. We will be publishing a further alert on these aspects of the Bill early next week.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/draft-data-protection-bill-published/

Monitoring employees: Guidance on privacy in the workplace

The recent decision of the European Court of Human Rights in Barbulescu v Romania (see our Be Aware blog post of 7 September) has placed the spotlight once more on the extent to which employers are permitted to monitor their employees’ communications and activities.

The adoption of new information technologies in the workplace allows for systematic and potentially invasive monitoring, enabling employers to track employees not just in the workplace but potentially in their homes through many different devices including smartphones, tablets and wearables. The boundaries between work and home have  become more blurred as more employees work remotely using their employer’s equipment, or bring their own devices to work. Monitoring of individuals at work can increasingly shade into monitoring in a private context. A further risk comes from the over-collection of data such as WiFi location data; analysis of meta-data may allow for invasive detailed monitoring of an individual’s life and behaviour. Such new technologies create significant privacy challenges. Whilst data privacy and human rights legislation do not prevent employers from monitoring workers, employers should remember that workers are entitled to some privacy at work.

The General Data Protection Regulation (GDPR), which comes into force in May 2018, will significantly raise the stakes for employers to ensure that their monitoring systems stay on the right side of the privacy line. With this in mind, on 8 June 2017 the EU Article 29 Working Party on data protection adopted a new Opinion on data processing at work. Whilst primarily concerned with employers’ current obligations regarding monitoring the Opinion looks forward to the additional obligations which will be placed on employers by the GDPR.

In order to process personal data in the employment context, the employer must have a legal basis for doing so. Processing of special categories of data (usually referred to as sensitive personal data) is prohibited unless an exception applies; if such an exception applies, the employer must still have a legal basis for processing the data.  The Opinion emphasises that for the majority of processing at work, including monitoring, the legal basis cannot and should not be consent. Consent is generally not valid in the employment context as it cannot be freely given due to the real or potential prejudice which will usually arise from the employee not consenting.

Employers will more commonly be seeking to rely on the processing being necessary for a legitimate interest as the legal basis. Where the employer relies on legitimate interest, the processing must also be proportionate and should be carried out in the least intrusive manner possible. Specific mitigating measures should also be put in place to ensure a proper balance between the legitimate interest of the employer and the rights of employees; such measures might include only monitoring in certain areas, or avoiding monitoring sensitive areas such as changing rooms, avoiding monitoring of personal communications and undertaking spot check rather than continuous monitoring.

Employees must be informed of the existence of any monitoring, the purposes for which personal data are processed and any other information necessary to ensure fair processing. The information requirements under the GDPR will be more detailed and specific.

In order to comply with GDPR, employers as data controllers are required to implement data protection by design and default. An example of the impact which this has on workforce data is that where an employer issues devices to employees, the most privacy-friendly solutions should be selected if tracking technologies are involved.

The Opinion addresses a number of data processing at work scenarios in which new technologies have the potential to result in high risk to the privacy of employees:

  • Processing during recruitment

Employers should not routinely  inspect the social media profiles of prospective candidates during recruitment processes. Such information should only be reviewed if it is necessary for the job, for example in order to be able to assess specific risks regarding candidates for a specific function. Candidates must be informed if social media information will be reviewed during recruitment.

Data collected during the recruitment process should generally be deleted as soon as it is clear that an offer of employment will not be made or not be accepted.

  • Processing during in-employment screening

Similarly, in-employment screening of employees’ social media profiles should not take place on a generalised basis. Employees also should not be required to use a social media profile provided by their employer; the option of a ‘non-work’ profile must be available.

  • Monitoring ICT usage in the workplace

Technological developments have enabled newer, potentially more intrusive and pervasive ways of monitoring employees’ ICT usage. The Opinion suggests that as good practice employers should offer alternative unmonitored access to communication technologies where employees can exercise their legitimate right to use work facilities for some private usage. Employers can implement an “all-in-one” monitoring solution for all ICT usage in the workplace, for example applications to decrypt and inspect secure traffic to detect anything malicious that can also record an employee’s online activity on the network. The employer can rely on legitimate interests to protect the network, however monitoring every online activity of employees is an interference with the right to secrecy of communications. A policy should be developed and made easily accessible concerning the purposes for which, when and by whom suspicious log data can be accessed and to guide employees about acceptable and unacceptable use.  If it is possible to block websites rather than continuously monitoring communications, blocking should be chosen. Prevention should be given more weight that detection – it is in the employer’s interest to prevent internet misuse rather than detecting it.

  • Monitoring ICT usage outside the workplace

ICT usage outside the workplace has become more common with the growth of home and remote working and ‘bring your own device’ (BYOD) policies. These technologies can pose a risk to employees’ private lives as workplace monitoring extends into the domestic sphere.

In respect of remote and home working, the use of, for example, software which logs keystrokes and mouse movements or captures screenshots, logging of applications used and remotely enabling webcams will be disproportionate.

In respect of BYOD policies, appropriate measures must be in place to distinguish between private and business use to prevent monitoring of private information.

Where employees are provided with wearable devices which track health information, processing of the data by the employer is prohibited as it falls within a special category of data. The health data should only be accessible by the employee.

  • Time and attendance data

Systems that allow employers to control who can enter their premises or restricted areas can also allow the tracking of employees’ activities. New technologies may also process biometric data. Employees must be informed about any such processing and continuous monitoring of entrance and exit times cannot be justified for purposes such as performance evaluation.

  • Vehicle tracking

Any employer using vehicle telematics will collect data about the employee using the vehicle. Employers may be legally obliged to install some tracking eg for driver hours records and may have a legitimate interest in knowing where company vehicles are. However, use of such data should be proportionate. If private use of a vehicle is permitted, employees should have the opportunity to turn off location tracking where appropriate. The employer must also clearly inform employees that company vehicles are installed with trackers.

  • Disclosure of employee data to third parties

It has become increasingly common for companies to transmit employees’ data to customers for the purpose of ensuring reliable service provision. However, such data should only be provided if it is proportionate. For example, in the case of a delivery driver, the company might have a legitimate interest in transmitting information regarding the driver’s location to a customer, but not their name or a photograph.

Employers need to re-examine their employee monitoring systems and policies as part of their preparation for being GDPR-compliant.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/monitoring-employees-guidance-on-privacy-in-the-workplace/

ECHR confirms that employers do not have green light to monitor employee emails

Further to our Be Aware post of 1 February 2016 on 5 September 2017  the Grand Chamber of the European Court of Human Rights overturned the Lower Chamber’s judgment in Barbulescu v Romania and held the dismissal of an employee after his employer monitored his Yahoo Messenger communications and discovered that he had used the internet for personal purposes had breached his Article 8 of the Convention on Human Rights right to respect for his private life and correspondence. This decision makes it clear that employers need well-drafted, well-communicated policies which  clearly explain what internet and social media usage is prohibited in the workplace and what measures the employer will take to monitor and control such usage.

The employer’s internal regulations prohibited personal use of computers  but did not contain any reference to the possibility that employees’ communications would be monitored. The employer undertook monitoring of Mr Barbulescu’s Yahoo Messenger account, including both the frequency and content of personal communications. Mr Barbulescu unsuccessfully challenged his dismissal in the Romanian courts, arguing that the employer had breached his Article 8 right to respect for his private life and correspondence. He then brought a claim in the ECHR, arguing that the domestic courts had failed to protect his Article 8 right. In 2016 the Lower Chamber dismissed his claim, holding that Mr Barbulescu had no reasonable expectation of privacy in his communications at work. The national authorities had struck a fair balance between his right to respect for his private life and the employer’s interests. Mr Barbulescu then took his case to the Grand Chamber, who disagreed with the Lower Chamber.  The Court considered that it was clear that Mr Barbulescu had been informed of the ban on personal internet use, but not so clear that he had been informed about the monitoring before it took place, particularly about the possibility that the employer might have access to the content of communications. The Court considered that when domestic courts are considering the proportionality of employer monitoring of communications, the following factors should be taken into account:

  • Whether the employee has been notified of the possibility that the employer might take measures to monitor correspondence;
  • The extent of the monitoring and the degree of intrusion into the employee’s privacy. A distinction should be made between the flow of communications and their content;
  • Whether the employer has provided legitimate reasons to justify monitoring the communications and accessing content
  • Whether it would have been possible to establish monitoring based on less intrusive methods;
  • The consequences of the monitoring; and
  • Whether the employee has been provided with adequate safeguards.

In this case, the Grand Chamber found that the court’s conclusion that a fair balance had been struck between the employee’s rights and the employer’s interests questionable. The Grand Chamber considered that the Romanian courts did not protect Mr Barbulescu’s Article 8 rights.

This decision makes it clear that if employers want to monitor and restrict personal use of the internet and other communications at work, the policy must make it clear what is or is not permitted and must inform employees of any monitoring which will take place. Restrictions and monitoring should be proportionate; the Grand Chamber noted that an employer’s instructions cannot reduce private social life in the workplace to nothing.

 

 

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