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Review of the year and look forward to 2018

In this Be Aware review of the year, we highlight the most important legislative and case law developments from 2017 and identify the key developments to watch out for in 2018.

2017: The year in review

Legislation

 

Apprenticeship levy: Finance Act 2016, Income Tax (Pay As You Earn (Amendment) Regulations 2017 The apprenticeship levy became payable with effect from 6 April 2017 and is payable by employers through PAYE.

 

Read more in our Be Aware alert.

Immigration: Immigration Skills Charge Regulations 2017 The Regulations introduced a charge which is payable by sponsors from 6 April 2017 in respect of each skilled migrant they sponsor (subject to some exemptions and transitional provisions). The charge is £1000 a year for larger sponsors, with a lower rate for smaller sponsors and charities.
Gender pay gap reporting: The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 The Regulations came into force on 6 April 2017

and require affected employers to publish information on their gender pay gap, gender bonus gap and the gender split across four pay bands (quartiles).

The Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 extend the duty to publish annual gender pay gap reports to public sector employers with over 250 employees.

The main differences between the public and private sector requirements are:

  • The public sector duty takes effect as part of the existing public-sector equality duty, rather than as a standalone requirement
  • The ‘snapshot’ date for private sector employers is 5 April but 31 March for public sector employers.

Read more in our Be Aware alert.

Trade unions: Trade Union Act 2016 commencement orders Commencement orders brought the main provisions of the Trade Union Act 2016 into force on 1 March 2017. These include:

  • Ballots: 50% turnout requirement (section 2).
  • Ballots in “important public services”: additional 40% support requirement (section 3).
  • Information requirements in relation to voting papers and information provided to members on the result of a ballot (sections 5 and 6).
  • The requirement for unions to provide two weeks’ notice of industrial action to employers (sections 8 and 9).
  • Union supervision of picketing (section 10).
  • Check-off in the public sector: the power to make Regulations to require unions to make a reasonable payment to employers for operation of a check-off system (section 15).

Regulations defining important public services in health, fire, transport, education and border security also came into force on 1 March 2017.

Read more in our Be Aware alert.

Whistleblowing: The Prescribed Persons (Reports on Disclosures of Information) Regulations 2017

 

The Prescribed Persons (Reports on Disclosures of Information) Regulations 2017 came into force on 1 April 2017. The regulations set out the requirements for prescribed persons to report annually on disclosures of information received from workers. Specifically, they provide that the reporting period will be 12 months beginning on 1 April each year, setting out how the report should be published and what it should contain.

 

Key cases

 

Worker status
Aslam & Farrar v Uber, EAT The EAT upheld an employment tribunal’s ruling that Uber drivers are workers for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998.
Independent Workers’ Union of Great Britain and RooFoods Limited t/a Deliveroo The Central Arbitration Committee decided that Deliveroo riders are not workers for the purposes of a union’s application for compulsory recognition under Schedule A1 of TULRCA
Gascoigne v Addison Lee Ltd, ET An employment tribunal held that a cycle courier working for Addison Lee was a worker under the Working Time Regulations 1998 and the Employment Rights Act 1996.
Dewhurst v CitySprint, ET An employment tribunal held that a cycle courier working for CitySprint was a worker under the Working Time Regulations 1998 and the Employment Rights Act 1996.
Discrimination
Bougnaoui and another v Micropole SA, ECJ

 

The ECJ held that an employee’s dismissal for wearing an Islamic headscarf at work, in breach of a direct instruction following a customer’s objection to her wearing the headscarf, was directly discriminatory on grounds of religion or belief.
Achbita v G4S Secure Solutions NV, ECJ The ECJ held that a Belgian company’s dress code banning the wearing of a Muslim headscarf while on duty did not amount to direct discrimination but was capable of amounting to indirect discrimination under the Equal Treatment Framework Directive.

Read more in our Be Aware alert.

Essop v Home Office (UK Border Agency); Naeem v Secretary of State for Justice, Supreme Court The Supreme Court confirmed in Essop that, in indirect discrimination claims, claimants are not required to prove the reason why a PCP puts, or would put, an affected group at a particular disadvantage. The essential element is a causal connection between the PCP and the group and individual disadvantage. In the conjoined case of Naeem, also in relation to indirect discrimination, the Supreme Court said that the reason why a PCP puts or would put an affected group at a particular disadvantage does not need to relate to the protected characteristic.
Ayodele v Citylink Ltd, Court of Appeal The Court of Appeal held that Efobi v Royal Mail Group Ltd was wrongly decided, and restored the position that the claimant has the initial burden of proof of showing a prima facie case of discrimination.
Working time
Dudley MBC v Willetts, EAT The EAT held that payment for voluntary overtime that is normally worked is within the concept of normal remuneration and should be taken into account when calculating holiday pay.

Read more in our Be Aware alert.

Fulton and another v Bear Scotland Ltd (No 2), EAT The EAT confirmed that a three-month gap between underpayments of wages breaks a “series of deductions”, limiting the scope to make retrospective claims for underpaid holiday pay.
The Sash Window Workshop v King, ECJ The European Court of Justice held that a worker is entitled to be paid on termination for any periods of annual leave that have accrued during employment, where the worker has been deterred from taking that leave because the employer would not grant paid leave.

Read more in our Be Aware alert.

Employment tribunals
R(Unison) v Lord Chancellor, Supreme Court In judicial review proceedings brought by Unison, the Supreme Court unanimously declared that employment tribunal and EAT fees are unlawful, under both domestic and EU Law, and has quashed the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 on the basis that it prevents access to justice.

Read more in our Be Aware alert.

Joint Presidential Guidance on injury to feelings awards

 

The Presidents issued joint Presidential Guidance which will apply to claims presented on or after 11 September 2017 and in respect of which there will be:

  • A lower band of £800 to £8,400.
  • A middle band of £8,400 to £25,200.
  • An upper band of £25,200 to £42,000, with the most exceptional cases capable of exceeding £42,000.

There is specific provision for the Simmons v Castle uplift in claims in Scotland and in respect of claims presented before that date, it will be open to tribunals to adjust the bands.

Whistleblowing
Royal Mail Group Ltd v Jhuti, Court of Appeal The Court of Appeal held that an employee was not automatically unfairly dismissed for making protected disclosures to her line manager because the person who took the decision to dismiss her (for poor performance) was unaware of those disclosures.
Chesterton Global Ltd v Nurmohamed, Court of Appeal The Court of Appeal considered for the first time the meaning of the “public interest” test inserted into the whistleblowing legislation in 2013. The court upheld the tribunal’s decision that the worker’s allegations of financial misreporting, that had adversely affected the levels of commission received by about 100 employees (including the worker himself), was in the public interest and a qualifying disclosure.
Trade unions
R. (on the application of Lidl Ltd) v Central Arbitration Committee, Court of Appeal The Court of Appeal upheld the CAC’s decision that a group of warehouse operatives constituting 1.2% of Lidl’s total UK workforce was an appropriate bargaining unit.
Dunkley v Kostal Limited, EAT The EAT held that an employer’s attempt to bypass collective bargaining with a recognised trade union by making a pay offer directly to individual employees amounted to unlawful inducement contrary to section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992.

Read more in our Be Aware alert.

British Airline Pilots’ Association v Jet2.com Ltd, High Court The High Court  held that an airline, on which the specified method of collective bargaining had been imposed by the CAC, was not required to negotiate with a recognised trade union over pilots’ rostering arrangement

 

2018: What’s on the horizon?  

Legislation

 

Data protection: GDPR and the Data Protection Bill 2017-2019 The Data Protection Bill will replace the Data Protection Act 1998 (DPA) to provide a comprehensive legal framework for data protection in the UK supplemented by the General Data Protection Regulation (GDPR) until the UK leaves the EU. The GDPR comes into force on 25 May 2018.

Read more in our Be Aware alert.

Taxation of termination payments: Finance Act 2018 The Finance Act 2017 will tighten the termination payment rules to prevent manipulation. These changes are set to be implemented in April 2018 and will mean that the basic pay amount of payments made in lieu of notice will  be taxable and subject to NICs.
Parental bereavement: Parental Bereavement (Leave and Pay) Bill 2017-19

 

The Bill was introduced to the House of Commons by Kevin Hollinrake MP, but is supported by the government. Under the Bill, employed parents who have lost a child below the age of 18 will be entitled to at least two weeks’ paid leave (paid at the same rate as the flat statutory maternity pay rate) if they meet eligibility criteria.
Gender representation: Gender Representation on Public Boards (Scotland) Bill The aim of the Gender Representation on Public Boards (Scotland) Bill is to improve the representation of women in non-executive positions on public boards. The Bill seeks to introduce a “gender representation objective” that women should make up 50% of non-executive board membership. In addition, the Bill suggests measures to increase under-representation from different groups, without resulting in unlawful discrimination.
Monitoring: Investigatory Powers (Interception by Business etc for Monitoring and Record-keeping Purposes) Regulations 2018 Draft regulations were made on 18 December 2017 and will replace The Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 in due course (the Telecommunications Regulations). The draft regulations simply replicate what is in the Telecommunications Regulations, which provide for circumstances where, in a business context, it is lawful for the purposes of RIPA 2000 to intercept communications (including those of employees) without consent.
Public sector exit payments: Repayment of Public Sector Exit Payment Regulations Sections 154 to 157 of the Small Business, Enterprise and Employment Act 2015 empower the government to make regulations requiring certain public sector workers to repay specified exit payments if they are re-employed in the public sector within 12 months. These provisions came into force on 1 January 2016 and draft regulations have been consulted on but not yet brought into force.

The government also intends to introduce a cap of £95,000 on the total pre-tax aggregate value of exit payments made to most types of public sector employee.  Initially the cap was expected to come into force in Autumn 2016.

Trade unions: Public sector check-off The Trade Union (Deduction of Union Subscriptions from Wages in the Public Sector) Regulations 2017 came into force on 10 March 2017 and define relevant public sector employers for the purposes of section 116B of the Trade Union and Labour Relations (Consolidation) Act 1992. When it is brought into force, section 116B will place restrictions on deduction of union subscriptions from wages (check-off) in the public sector.

 

Key cases

 

Worker status
Smith v Pimlico Plumbers, Supreme Court Whether a plumber was a worker for the purposes of the Employment Rights Act 1996 and the Working Time Regulations 1998 and an employee within the extended meaning in the Equality Act 2010. Hearing on 20 and 21 February 2018.
Boxer v Excel/City Sprint, ET Whether TUPE applies to workers. Hearing on 2 and 5 February 2018.
Discrimination
Porras Guisado v Bankia SA, ECJ Advocate General Sharpston has given her view that the Pregnant Workers Directive should protect workers against dismissal from the moment they become pregnant, even before they have notified their employer of the pregnancy. ECJ judgment awaited.
Donelien v Liberata UK, Court of Appeal Whether an employer that took reasonable steps, but not every step possible, to ascertain whether an employee was disabled, did enough to avoid having constructive knowledge of the disability.
Carreras v United First Partners Research, Court of Appeal Whether an expectation, rather than a strict requirement, for an employee to work long hours was a PCP. Judgment awaited.
Asda Stores Ltd v Brierley, Court of Appeal Appeal from decision of the EAT which upheld an employment tribunal’s decision that a predominantly female group of supermarket retail employees can compare themselves with a mainly male group of distribution depot employees for the purposes of an equal pay claim of work of equal value. The EAT rejected all grounds of appeal submitted by Asda and held that the comparison was permitted under both EU and domestic law. Due to be heard 23 October 2018.
Capita Customer Management Limited v Ali, EAT Appeal against tribunal decision that a male employee was subjected to sex discrimination when his employer refused to allow him any period of shared parental leave at full pay (when a woman on maternity leave would have received 14 weeks’ full pay). Judgment awaited.
Hextall v Chief Constable of Leicestershire Police, EAT Appeal against tribunal decision that a police force’s policy of giving a period of full pay to mothers on maternity leave, but paying only statutory shared parental pay to partners, is not discriminatory. Heard on 16 January 2018 and judgment awaited.
Working time
Ville de Nivelles v Matzak Advocate General Sharpston has given an opinion that the definition of “working time” in the Working Time Directive should not be interpreted as automatically including time spent on “stand-by” duty, during which workers must be readily available to perform duties for their employer within a short period of time but need not be present at their workplace. ECJ judgment awaited.
Sash Window Workshop Ltd v King, Court of Appeal The Court of Appeal will consider whether a worker is entitled to be paid on termination for any periods of annual leave that have accrued during employment, where the worker has been deterred from taking that leave because the employer would not grant paid leave.
National Minimum Wage
Focus Care Agency Ltd v Roberts; Frudd and another v The Partington Group Ltd; Royal Mencap Society v Tomlinson-Blake. Court of Appeal The Court of Appeal will consider the correct approach to determine the question whether employees, who sleep-in in order to carry out duties if required, engage in “time work” for the full duration of the night shift or whether they are only entitled to the national minimum wage when they are awake and carrying out relevant duties. Hearing on 20 March 2018.
Contracts of employment
Abrahall and ors v Nottingham City Council and anor, Court of Appeal Appeal from an EAT decision which held that a local authority’s employees retained their contractual right to annual increments in pay notwithstanding their acceptance of new contract terms that were subject to a later collective agreement which did not incorporate the entitlement. Judgment awaited.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/17332-2/

Be Aware: Employer’s direct pay offer to employees was unlawful inducement to end collective bargaining

In our Be Aware blog post of 28 February 2017 we reported on the employment tribunal decision in Dunkley v Kostal UK Limited, a case on s.145B of the Trade Union and Labour Relations (Consolidation) Act 1992. Section 145B is complex but essentially prohibits employers from making offers directly to union members to change their terms and conditions in order to avoid collective bargaining (ie if the employer’s “sole or main purpose” in making the offer is to achieve a “prohibited result”). The Employment Appeal Tribunal (EAT) has now handed down its judgment in the appeal in Kostal and it is not good news for employers who recognize a trade union as the EAT upheld the decision of the tribunal. This is the first appellate level decision on the meaning of the ‘prohibited result’ under s.145B and it is likely that there will be a further appeal.

Facts

The facts in Kostal demonstrate a fairly common scenario in collective bargaining. The employer had a recognition agreement with Unite. In pay negotiations in November 2015 the company made a pay offer of a 2% increase in basic pay plus a 2% Christmas bonus, in return for changes to terms relating to sick pay for new starters, reduction in overtime rates and consolidation of breaks.

The union balloted members on the offer, which was rejected. The employer then sent a notice to all employees summarising the deal and giving until 18 December to accept. The notice stated that failure to sign and return would result in the Christmas bonus not being paid. In January the employer sent a further letter to employees who had not accepted the offer stating that if no agreement could be reached this may lead to notice being given to terminate employment. In the meantime the dispute between the company and the union was referred to ACAS but a collective agreement in respect of pay for 2015 was not in fact concluded until November 2016.

The claimants – all members of Unite – brought claims under s.145B.

Tribunal decision

Previous employment tribunal judgments had gone both ways on the fundamental issue of whether s.145B merely makes it unlawful to make an offer to employees which would bring an end to collective bargaining, or whether, as a number of trade unions have argued, s.145B stops any direct offer to employees outside of collective bargaining.  In Kostal the tribunal effectively agreed with the trade unions,  holding that if there is a recognition agreement which includes collective bargaining the employer cannot drop in and out of the collective process as and when that suits its purpose. Kostal argued that collective bargaining of pay would continue the following year,  but that year’s pay offer had to be made directly to ensure that the workforce did not miss out on their Christmas bonus, but the tribunal discounted the fact that the employer intended to determine terms and conditions collectively in the future.

EAT decision

The EAT was split in its decision, but the majority rejected the argument that s.145B’s prohibition against inducements relating to collective bargaining is aimed only at inducements to end or prevent collective bargaining of terms, and is not intended to catch all offers outside of collective bargaining.  The prohibited result occurs where offers, if accepted, result in new terms agreed directly and not through collective negotiations, whatever else is agreed through collective bargaining.  There is no warrant for reading in a requirement that the terms will not in the future or will no longer in the future be determined collectively.

Kostal’s argument that this interpretation would give unions an opportunity to hold employers to ransom by refusing to agree that a round of collective bargaining is complete until their demands are met was also rejected by the EAT.  The EAT considered that, in the case of employers who have engaged in lengthy and meaningful collective consultation and reached an impasse before considering making direct offers; or who can demonstrate a strong history of operating collective bargaining arrangements with the union and/or have no wish to avoid entering into such arrangements when the offers are made, tribunals will be slow to find that the employer’s purpose in making a direct offer was to achieve the prohibited result. However, in this case Kostal had not established an alternative purpose.

Implications

As the EAT construed ‘will not or will no longer’ as looking at the immediate purpose of the employer rather than the future purpose, employers will face considerable problems in all cases where collective bargaining fails to reach an agreement. It may be very difficult to show that the purpose was not that the offer would “if accepted, result in new terms agreed directly and not through collective negotiations” as that will be the natural consequence of any direct offer to the employees.

Employers risk being subjected to substantial fines (£3,830 per employee) for an offer made to workers within a bargaining unit if they make an offer on any term which is the subject of collective bargaining before the collective bargaining process is finally exhausted.  The Kostal case is a clear demonstration of the problem which employers face. Kostal understandably did not wish to stir up unrest by failing to pay the Christmas bonus, but negotiations with the union had reached stalemate. Kostal therefore made individual offers including the Christmas bonus, but stated and intended that it would continue to collectively bargain all terms.

What should employers now do?

What can employers do to mitigate the potential for a breach of s.145B?

  • Be clear in communications with the union and the employees what the business reason or need is for any proposed change to terms and conditions and the reason for any urgency. Employers must prove their purpose is lawful. The stronger the business need the more likely a tribunal is to accept the business reason for the new terms is the main purpose;
  • Ensure if offers are made to employees the terms are the same as those offered via the trade union and, in most cases, that the scope of collective bargaining going forward remains unchanged;
  • Exhaust collective bargaining procedures first. Avoid expressing hostility towards  collective bargaining arrangements. In determining the employer’s purpose, the employment tribunal must take into account any evidence that  the employer had recently changed or sought to change, or did not wish to use, collective bargaining;
  • Avoid any threat of de-recognition as a tactic in negotiations as this would be particularly high risk;  and
  • Review collective bargaining agreements to provide for robust dispute resolution.   

Our employment team have extensive experience of advising on changes to terms and conditions where a union is recognised for collective bargaining and succeeded in defending British Airways against a s.145B claim in 2013 following a restructure. If you would like to discuss your current collective bargaining  arrangements or ongoing or anticipated change programmes, please contact your usual DLA Piper contact.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/be-aware-employers-direct-pay-offer-to-employees-was-unlawful-inducement-to-end-collective-bargaining/

Data Protection Bill: impact on employee data

On 14 September the UK Government published the draft Data Protection Bill, to replace the Data Protection Act 1998 (DPA) and supplement the forthcoming General Data Protection Regulation (GDPR) in certain key areas.

Our earlier Blog Entry provided an overview of the Bill. In this article we highlight the specific impact of the Bill on how employers process workforce data.

 Extra safeguards for special categories of data

Special categories of personal data are data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data and data concerning health or a person’s sex life or sexual orientation.

The GDPR imposes strict controls on processing special categories of data.  However, one of the limited grounds under GDPR on which this data can be processed is where it is necessary for purposes authorised by Member State law “in the field of employment and social security and social protection law“.

The Bill sets out the basis on which special category data may be lawfully processed in the context of UK employment law. The derogation is narrow in scope and only includes processing necessary for compliance with legal obligations such as SSP, avoiding unfair dismissal or discrimination, or compliance with Health and Safety laws.  Further, under the Bill, the ability to rely on the derogation is subject to the controller complying with additional conditions and  safeguards.  In particular, employers will have to put in place an appropriate policy document which:

  • Explains the employer’s procedures for securing compliance with the core data protection principles in the handling of the relevant special category data; and
  • Explains the employer’s policies as regards the retention and erasure of the special category data, giving an indication of how long such personal data is likely to be retained.

In addition, the controller must review,  update and retain the policy documents from time to time and make them available to the ICO (the UK data regulator) on demand. These are substantial new procedural requirements which employers will not currently have in place when handling this data and will need careful governance to manage.

In addition, the employer will also need to keep a more detailed record of the processing of special categories of data, supplementing the general new GDPR requirement for a golden record of HR data.

All employers will process special categories of data, particularly health data, as a normal part of the employment relationship.  As well as ensuring that they are only processing this data for lawful purposes, employers will have to decide how best to build in these added requirements to fit in with their general GDPR compliance arrangements and existing HR policies in the relevant areas (such as recruitment and absence management).To achieve compliance in practice employers will need to train staff on the procedures for dealing with such data in accordance with the safeguards, in particular ensuring appropriate deletion or destruction.

Information relating to criminal convictions and offences

The GDPR contains a general prohibition from processing personal data relating to criminal convictions and offences, including allegations of an offence. This  has caused real alarm amongst UK employers who would need to process such information within the employment relationship at times (some disciplinary and grievances for example) and who currently do criminal record checks routinely on recruitment.

Fortunately for UK businesses, the Bill enables processing during the course of employment where necessary for employment law compliance for example.  The Bill also makes it clear that employers will be able to continue to carry out criminal records checks where employees are subject to the enhanced DBS regime (ie for roles working with children and vulnerable adults). It is also likely to assist criminal record checks where necessary for regulatory compliance. The same safeguards as for special category data must be applied.

However, the full extent of which circumstances criminal record checks could be carried out on recruitment remains unclear. On the basis of the current Bill, employers would still not be able to carry out blanket criminal records screening pre-employment for all sectors and roles as is common for many UK employers today.  More clarity in this area would be welcome as the Bill progresses and in the meantime employers who currently carry out checks should take specific advice about whether these are likely to be permitted going forward under the Bill in their particular circumstances.

Next steps

It should be noted that the Bill has yet to be debated in Parliament and may be subject to change before it receives Royal Assent. The Bill will go to the House of Lords committee stage on 20 October 2017.

The additional obligations which the Bill will place on employers in respect of workforce data make it critical that the HR team is an integral part of an organisation’s preparation for the GDPR.

Suggested tasks to take now:

  • Identify special categories of data processed throughout the employment lifecycle from recruitment to termination and beyond;
  • Understand the legal basis for processing and identify what will need to change to comply with the new regime;
  • Prepare to update and implement appropriate policies and changes to HR practices and procedures to manage these obligations; and
  • Prepare to train staff on their obligations under the new regime.

For more information on data privacy visit DLA Piper’s Privacy Matters blog.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/data-protection-bill-impact-on-employee-data/

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: https://www.dlapiperbeaware.co.uk/monitoring-employees-guidance-on-privacy-in-the-workplace/

Brexit: What next in the Article 50 judicial review?

The English High Court today held that the UK Government cannot trigger Article 50 of the EU Treaty to commence the UK’s exit from the European Union, or ‘Brexit’, without referring the matter to Parliament. This differs from the earlier decision by the Northern Ireland High Court, where the argument that exit required an Act of Parliament or some other form of Parliamentary mandate was rejected.

Key points in the judgment 

The UK Government had argued that in enacting the European Communities Act 1972 – the legislation which governed the UK’s entry to the European Union in 1973 – the Crown retained its prerogative power to effect a withdrawal from the EU treaties, and thereby the Crown should have the power to choose whether EU law should continue to have effect in the domestic law of the UK or not.

The court rejected this argument, finding nothing in the text of the 1972 Act to support this conclusion.

What happens next? 

The court gave permission to the UK Government to appeal directly to the Supreme Court, bypassing the Court of Appeal. This is known as “leapfrogging”. Leapfrog appeals are only available in exceptional circumstances and usually require the granting of a leapfrog certificate by the trial judge and the grant of permission to appeal by the UK’s highest court, the Supreme Court. In this case, a leapfrog appeal has already been agreed. This is unusual but unsurprising: The case gives rise to significant issues of public law that have rarely if ever been considered in such an important context.

We understand that dates have been set aside in December for the Supreme Court to hear the appeal, most likely before a full bench of eleven judges. Supreme Court hearings are streamed live and this case will garner significant attention, both nationally and internationally.

What is the mechanism for withdrawing from the EU?

Article 50 of the Treaty on European Union provides the legal basis for a Member State to leave the EU. Article 50(1) states that any Member State may decide to withdraw from the EU in accordance with its own “constitutional requirements”. This term is not defined. The question of what the UK’s constitutional requirements are for these purposes has been a key issue in the judicial review proceedings. Under Article 50(2), a Member State that decides to withdraw must notify the European Council of its intention. Once a Member State has given notice, a two year period begins in which a withdrawal agreement is to be negotiated. The Member State ceases to be a member of the EU from the date of entry into force of the withdrawal agreement or, failing that, two years after the Article 50 notification (unless all Member States agree to extend).

For more information see: Brexit: What happens next?

What difference does an Act of Parliament make?

If an Act of Parliament is required before the Government can trigger the UK’s exit from the EU, the standard procedure for creating a new law will presumably have to be followed.

The process begins with the drafting of a Bill. This is followed by a number of readings of the Bill in the House of Commons, along with detailed examination of the Bill by committee and a reporting stage. There is the opportunity for debate at various points along the way. After the final reading, Members of Parliament vote on whether the Bill should be approved. The Bill follows a similar process through the House of Lords. Final amendments are then considered. Once passed, a Bill needs to receive Royal Assent before it becomes an Act of Parliament.

The effect of this process is that there will be the opportunity for another airing of the arguments for and against leaving the EU in both the House of Commons and the House of Lords. There is also likely to be debate about how the exit negotiations should be conducted, and the form of any withdrawal agreement.

The outcome of the vote on the Bill is unpredictable. Most MPs are thought to have voted for the UK to stay in the EU. We are not aware of any analysis of the views of members of the House of Lords, but the Constitution Committee of the House of Lords published a report in September 2016 which concluded that it was constitutionally appropriate for the assent of Parliament to be sought for the triggering of Article 50. This, they said, could be achieved either by an Act of Parliament or a resolution stating Parliament’s approval for the triggering of Article 50. Clearly therefore the House of Lords sees Parliament as having an important role to play in the Article 50 process. All that said, it would be difficult for Parliament to ignore public opinion on Brexit, as evidenced by the outcome of the referendum.

In October 2016, Theresa May announced that she would trigger Article 50 by the end of March 2017. This timing could now be at risk.

What else do you need to know?  

The court was not asked to decide the important question of whether or not an Article 50 notice can be revoked. Indeed the Attorney-General appeared to concede that such a notice, once given, would not be revocable. The Attorney-General’s statement might not be categorical, and there are certainly differing views on this issue. Donald Tusk, President of the European Council, recently suggested that an Article 50 notice could be withdrawn. Others in Brussels disagree. Ultimately this is a question of EU law (with the Court of Justice of the European Union as the final court of reference) rather than of English law.
In Northern Ireland, a similar legal challenge was brought to decide whether the consent of the Northern Irish Assembly is required to trigger Article 50. This challenge was rejected by the Northern Ireland High Court and this case is also likely to be appealed to the UK Supreme Court.

Conclusion 

It is fairly unusual for the courts to be called on to intervene in the core workings of the UK’s constitution. For constitutional lawyers, this case represents a rare opportunity to explore sometimes complex legal arguments about the intertwined roles of Government and Parliament. For the rest of us, the outcome is the most important thing. For now, the only clear consequence of the High Court judgment is that Brexit uncertainty is set to continue.

By Hazel Moffat, Camilla MacPherson and James MacGachie

Permanent link to this article: https://www.dlapiperbeaware.co.uk/brexit-what-next-in-the-article-50-judicial-review/

High Court hears legal challenge to Government triggering Article 50 to leave the EU

The High Court has heard 3 days of argument in legal proceedings brought by a group of individuals seeking to determine whether the UK Government has the legal power to trigger the Article 50 of the Treaty of the European Union process to leave the EU without an Act of Parliament. A number of British citizens are suing the Government claiming that leaving the European Union will deny them rights derived from the treaties of the European Union which have been given force in UK law under the European Communities Act 1972, which they claim can only be removed by an Act of Parliament. Lawyers for the claimants also argue that leaving the European Union will amend Scotland’s separate system of law, which again they say can only be amended by an Act of Parliament. The Government argues that the result of the referendum on 23 June gave it a mandate to begin the exit, and that it has the power to trigger Article 50 under royal prerogative without a vote in Parliament. Appearing for the Government, the Attorney General Jeremy Wright argued that triggering Article 50 was a classic example of the proper and well-established use of the royal prerogative by the executive. The Government argues that Parliament did not take the opportunity to prevent a restriction on the use of royal prerogative for the triggering of Article 50, and that there is no inevitability that individuals will lose EU rights as that will be a matter for negotiation. The legal arguments are complex, raising thorny principles of constitutional law. However, the 3 day hearing did raise some interesting points:

  • Lawyers for both sides are proceeding on the basis that the triggering of Article 50 is irrevocable, although the president of the European Council Donald Tusk said last week that the UK could still abandon the formal departure process after giving notice under Article 50.
  • Attorney General Jeremy Wright, representing the UK Government, told the court it is “very likely” MPs will be able to vote on the final Brexit agreement between the UK and the European Union.
  • James Eadie QC, representing the UK Government, told the court that EU citizens living in the UK will not automatically lose the right to remain in the country at the end of the Brexit process, since the right to reside in the UK is enshrined in national law.

Lord Chief Justice Lord Thomas, Master of the Rolls Sir Terence Etherton and Lord Justice Sales reserved their decision last Tuesday at the end of the 3 day hearing but said that judgment would be given as quickly as possible. It is likely that, whatever the outcome of the High Court hearing, the case will be appealed to the Supreme Court, with a hearing expected to take place in early December.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/high-court-hears-legal-challenge-to-government-triggering-article-50-to-leave-the-elast/

Quiz: How equal is your organisation’s pay?

There has never been a better time for employers to audit internal processes on pay. The Government’s consultation on mandatory gender pay gap reporting closed on 11 March, and although the consultation process has highlighted a number of problems with the draft regulations, the reference period for reporting is unlikely to change.
 
Employers will be required to calculate pay data for the pay period which includes 30 April 2017 – so decisions made on pay as early as May 2016 will have an impact on figures. These pay decisions need to be transparent, well documented, and moderated across the organisation to ensure that pay decisions on recruitment, promotion, annual pay reviews and particularly bonus awards do not lead to discrepancies and a higher risk of discrimination and equal pay claims.
 
Take our 60-second quiz “How equal is your pay?” to see how fair your organisation’s pay structures are, and to identify any potential problem areas while there is still time to take action.

 

 

Permanent link to this article: https://www.dlapiperbeaware.co.uk/quiz-how-equal-is-your-organisations-pay/

Early conciliation: what does it mean for employers?

Gurpreet Duhra, partner in our Sheffield office comments: Early conciliation (EC) has been available to claimants since 6 April 2014 but will be mandatory in respect of claims presented on or after 6 May 2014. Whilst employers could be forgiven for assuming that EC will have limited impact, particularly given the significant decline in claims since the introduction of fees, it is important that managers are prepared for the initial call from Acas to avoid prejudicing the employer’s position in any subsequent negotiations or litigation.

The mandatory EC procedure involves four steps:

Step 1: A prospective claimant who wants to institute relevant proceedings must provide prescribed information to Acas either by completing the EC form online or by telephoning Acas.

Step 2: An early conciliation support officer (ECSO) will make initial contact with the prospective claimant. The ECSO will explain the EC process, take some details from the prospective claimant and check that they wish to proceed with conciliation. As long as they do, the prospective claimant’s information will be sent to a Concilation Officer (CO).

Step 3: The CO will then contact the prospective respondent and enquire whether the prospective respondent is willing to participate in EC. If so, the CO must try to promote a settlement between the parties within the EC period of one calendar month from the date on which the prospective claimant made initial contact with Acas. The EC period may be extended once, by up to 14 days, if the CO believes settlement may be imminent.

An EC certificate must be issued where:

  • It is not possible to contact the parties;
  • The parties do not wish to participate in EC;
  • Settlement is not achieved within the prescribed period; or
  • The CO considers that settlement is not possible.  

The EC certificate will give the prospective claimant a unique reference number which they will have to include on their ET1 should they go on to present a claim. Without that reference number, the tribunal will reject the claim (except in the minority of cases where EC is not required).

What is the impact on employers?

There is no requirement on either party to engage with conciliation. If either the claimant or the respondent does not want to enter into discussions, the CO will simply issue the EC certificate. In many cases employers may consider that there is little incentive to enter into settlement negotiations until the employee has paid a fee to institute tribunal proceedings. However, there are potential benefits of settling a claim early, particularly where the claimant is unrepresented.

Employers should bear in mind the following considerations:

Do managers need training? A line manager may be the first contact that Acas makes with the employer. It is vital that anyone within the organisation who is contacted by Acas about an employment dispute understands the importance of dealing with the initial contact properly. The informal approach from Acas should be treated as seriously as employers would take a formal legal communication regarding a potential claim. Ensure that any managers who may be the initial recipient of the Acas call are aware of their responsibilities.  The initial recipient of the call should also be reminded to keep the issue confidential and not to discuss the details of the dispute with anyone else;

Give managers clear guidance on who will deal with EC. It is important that the individual who receives first contact from Acas about EC passes the details of the dispute on to whoever has responsibility for managing any subsequent tribunal claim. Individuals without appropriate authority and training should not attempt to resolve the issue themselves. Acas is allowing some larger organisations to register a national contact for the purposes of EC. For more information contact ECcontactsList@acas.org.uk;

Do not discount the option of settlement without first considering the merits. An unreasonable rejection of the possibility of settlement discussions could potentially lead to cost implications in the future. Relevant factors when assessing the merits of conciliation include: the likely strength and value of the claim; the potential legal costs and management time of defending a claim; the ease with which the issue could be resolved informally; and any damage to the organisation’s reputation that could result from lengthy and public tribunal proceedings;

Obtain as much information on the allegations from Acas as possible to make an informed assessment of whether the claim has any merits. Early investigation of the background to the allegations will also assist the organisation to respond comprehensively and accurately if the claimant does put in an ET1; 

Do not feel that you have to respond to all allegations immediately. Take time to consider your position before responding on allegations made and if necessary take legal advice on next steps including:

  • How to obtain further information on the allegations to allow you to determine the merits of any potential case;
  • The timing of any settlement and whether settlement is appropriate before a claim has been issued. As a result of the new fee regime, claimants are likely to want to explore settlement before issuing a claim whereas respondents are more likely to favour a ‘wait and see’ approach in order to see if a claimant is serious enough about their case to ‘put their money where their mouth is’. However, early settlements can be cheaper for employers and positions may become more entrenched once the fee has been paid;
  • The terms and nature of any settlement package offered.

Mark any internal correspondence regarding potential settlement as “without prejudice” to try and avoid it being disclosable in any future tribunal proceedings. Anything communicated to an Acas officer in connection with the performance of their functions is not admissible in evidence in tribunal proceedings unless the person who communicated it to the officer gives their consent.

Ensure that no one in the organisation reacts to contact from Acas by taking negative action against the worker(s) or employee(s) concerned eg refusing to give a reference. Depending on the type of allegations raised, this could lead to further claims (e.g. victimisation or whistleblowing).

Calculate the time limit: the EC regime includes a complicated process for recalculating the time limit for presenting the claim. The time limit is extended by the period between ‘Day A’ when the claimant contacts Acas, and ‘Day B’ when the EC certificate is deemed to have been issued, but may be extended further if this results in there being less than a month between Day B and the time limit expiring. There is significant potential for error and if the claimant fails to present the claim in time, the employer may be able to challenge its acceptance by the tribunal.

Ultimately in many cases employers may consider that there is little value in engaging in early conciliation. However, following the guidelines outlined above may prevent that decision from backfiring and creating increased legal risk for the employer.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/early-conciliation-what-does-it-mean-for-employers/

Shared parental leave: draft regulations published

Vinita Arora, a partner in our London office, comments: the Government has published draft regulations which will implement a new system of shared parental leave to supplement the current maternity, adoption and paternity leave schemes with effect from April 2015. The shared parental leave scheme will be extremely complex. Employers will need to put new policies in place well in advance of the implementation date.

There are three sets of regulations, the Shared Parental Leave Regulations 2014 (Leave Regulations), the Statutory Shared Parental Pay (General) Regulations 2014 (Pay Regulations) and the Maternity and Adoption Leave (Curtailment of Statutory Rights to Leave) Regulations 2014 (Curtailment Regulations).

In respect of babies with an expected week of childbirth (EWC) beginning on or after 5 April 2015, parents will be able to choose what type of leave to take. Mothers will still be entitled to 52 weeks maternity leave and fathers will still be entitled to two weeks’ ordinary paternity leave. However, if both parents fulfil the eligibility criteria, the parents will be able to give notice to opt to cut short statutory maternity leave and instead take shared parental leave.  Eligible employees will be entitled to a maximum of 52 weeks’ leave and 39 weeks’ statutory pay upon the birth or adoption of a child, which can be shared between the parents either concurrently or separately.

In order to qualify for shared parental leave, the mother must:

  • have 26 weeks’ service
  • have main responsibility for the care of the child (apart from any responsibility of the father’s)
  • have curtailed her statutory maternity leave
  • comply with the notice requirements

In addition, the father must have been engaged in employment as an employed or self-employed earner for 26 of the 66 weeks preceding the EWC and have average weekly earnings above the lower earnings limit.

In order for the father to take shared parental leave, he must:

  • have 26 weeks’ service
  • have main responsibility for the care of the child (apart from any responsibility of the mother’s)
  • comply with the notice requirements

The mother must also have been engaged in employment as an employed or self-employed earner for 26 of the 66 weeks preceding the EWC, have average weekly earnings above the lower earnings limit and have curtailed her statutory maternity leave.

When the mother is on maternity leave, neither parent can take shared parental leave unless the maternity leave is brought to an end early. The Curtailment Regulations set out how leave can be brought to an end by giving at least 8 weeks’ notice in a “leave curtailment notice”. They also set out the circumstances in which a leave curtailment notice can be withdrawn or revoked. Notice can be given before the birth of the child to enable both parents to take shared parental leave immediately after the birth.

Shared parental leave must be taken in blocks of at least a week but can be taken discontinuously. Where the employee requests discontinuous periods of shared parental leave the employer can agree to it, propose alternative dates or refuse the request altogether, in which case the employee will be entitled to one continuous period of leave. Alternatively he or she may withdraw the notice (presumably so that their spouse or partner may take the leave instead). All leave must be taken within 52 weeks of the child’s birth.

The draft rules as to notification are complicated. The employee may be required to give a number of different written notices to the employer particularly if plans regarding leave change.

The Leave Regulations also set out provisions on terms and conditions during leave, the right to return to work, rights on redundancy, and protection from detriment and dismissal, all of which are very similar to the current provisions on maternity, adoption and paternity leave. KIT days will be increased to a maximum of 20 per employee (including any KIT days already taken during maternity leave).

The provisions also apply to adoptive parents where the child is matched or placed for adoption on or after 5 April 2015.

The Pay Regulations set out the eligibility conditions for either parent to claim shared parental pay (SSPP) on the birth or adoption of a child, and the notifications that must be given to the employer in order to qualify. The pay regime is similar to statutory maternity pay, although inherently more complex due to the nature of shared parental leave.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/shared-parental-leave-draft-regulations-published/