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Entries in Employment (39)

Thursday
Jul062017

Data Protection is evolving - are you ready?

Angharad Ellis Owen, a Barrister within the Greene & Greene Employment Team, talks about the General Data Protection Regulation (GDPR) that is due to come into force on 25 May 2018. This new EU regulation replaces the existing Data Protection Act 1998 and aims to keep pace with the evolving digital world.

With Brexit looming, the Information Commissioner's Office (ICO) reported the government’s confirmation that the UK will be implementing the GDPR. Karen Bradley, The Secretary of State for Culture, Media and Sport, stated: “We will be members of the EU in 2018 and therefore it would be expected and quite normal for us to opt into the GDPR and then look later at how best we might be able to help British business with data protection while maintaining high levels of protection for members of the public.”  

Whilst Information Commissioner Elizabeth Denham has told businesses there’s no time to delay in preparing for “the biggest change to data protection law for a generation”, a YouGov report suggests that only 30% of the UK's businesses have so far taken steps to prepare for the introduction of the GDPR.

It has been said that the “GDPR is an evolution of the existing rules, not a revolution” and it is fair to say that the main concepts and principles remain unchanged; for example, the concepts of personal data, data controllers and data processors are broadly similar. However, the GDPR introduces new concepts and enhancements, such as the definition of personal data being extended to include IP addresses. Accountability and transparency are key concepts of the GDPR and preparing for the change will certainly require the attention and additional financial resources from organisations.  

Some of the main changes to be introduced by the GDPR are:

  • Harmonisation – of privacy laws across EU members states.
  • Fines – the ICO wields a bigger stick with fines against data controllers and data processors based on a two-tier basis. For the most serious violations of the law, the ICO will have the power to fine companies up to €20 million or 4% of a company’s total annual worldwide turnover for the preceding year.
  • Consent - the framework for consent is strengthened. Consent must be freely given, specific, informed and unambiguous, and a positive affirmation of the individual’s agreement. It will no longer be possible to rely on implied consent.  You should therefore review how consent is managed and explore seeking consent to meet the new GDPR requirement.
  • Data breaches – the GDPR places an obligation to notify the ICO within 72 hours of a data breach where it is likely to result in a risk to the rights and freedoms of individuals, such as through identity theft or a confidentiality breach. The ICO recommends that you take action now to ensure that you have the right procedures in place to detect, report and investigate a personal data breach.
  • Subject access requests (SAR) - in most cases the charge will no longer apply to process the SAR and organisations will have a month to comply with a SAR request.
  • Privacy Notices - additional information must be provided to data subjects, such as explaining the lawful basis for processing personal data.
  • Data Protection Impact Assessments (DPIAs) - this will become a legal requirement in circumstances where processing operations are likely to present specific risks to data subjects (e.g where new technology is being deployed).
  • Data Protection Officers - whilst public authorities (and some other specific organisations) must designate a named Data Protection Officer who has responsibility for data protection compliance, it is recommended by the ICO that all organisations have such a designated officer.
  • Demonstrating compliance - organisations will need to demonstrate compliance with the GDPR.
  • Children - GDPR introduces special protection for children’s personal data, though only in the context of commercial internet services, such as social networking.
  • International - for organisations that operate in more than one EU member state, the ‘main establishment’ will become the lead data protection supervisory authority.

Action

It is important that you start preparing now, for example you should consider:

  • Conducting an audit of all personal data processed - to understand what personal data you hold, the source of the data and who it is shared with. 
  • Consider why you process this data.
  • Ensure that you have systems (e.g. audit trails) in place to demonstrate compliance.
  • Allocate a Data Protection Officer.
  • Review all data processing contracts with a view to updating from May 2018.
  • Review and update internal policies and procedures, such as Data Protection Policies, Bring Your Own Device to Work Policy, Privacy Notices and Consent.
  • Review, update and/or implement internal processes, e.g. SAR process, DPIA, and data breaches.
  • Consider training key personnel on GDPR, who in turn can cascade knowledge business-wide.

The ICO has produced guidance on the steps that organisations should be taking now to prepare for the introduction of the GDPR (see useful links below).

Contact Us

If you have any questions in relation to your obligations or any other employment law matters please contact Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453) or Greg Jones  (gregjones@greene-greene.com ~ 01284 717 446).

For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

Useful links

https://ico.org.uk/media/for-organisations/documents/1624219/preparing-for-the-gdpr-12-steps.pdf

https://ico.org.uk/for-organisations/data-protection-reform/overview-of-the-gdpr/

https://ico.org.uk/for-organisations/improve-your-practices/data-protection-self-assessment/getting-ready-for-the-gdpr/

Wednesday
Jul052017

Greene & Greene present Law Award at West Suffolk College

                      

West Suffolk College held its Celebration of Achievement Awards for 2017 in a large marquee in the college grounds on Friday 30 June. This annual event recognises students for their hard work and dedication to their chosen subjects.

Greene & Greene is proud of its association with West Suffolk College and sponsored its ‘Outstanding Student of the Year Business Management (Law)’ award for the second year. Angharad Ellis Owen, Employment Law Barrister at Greene & Greene, was delighted to present the award to Andrew Stokes for his hard work throughout the year, which was rewarded with excellent results.

Hospitality students from the College’s Edmunds restaurant catered for the gala dinner, with entertainment provided by the A Capella student group, Amado, and a choir from Conservatoire East.

If you have any questions regarding employment law matters please contact Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453).  For more information on the services offered by Greene & Greene Solicitors please visit http://www.greene-greene.com/index.html and follow on Twitter @GreeneGreeneLaw.

Friday
May122017

Gender pay gap reporting in practice

In December 2016 we reported on how we had been working with clients for a number of months to prepare them for the new gender pay gap reporting procedures.  

In this latest blog employment specialist, Angharad Ellis Owen, takes us through the gender pay gap reporting obligation that came into effect on 6 April 2017.  Whilst there have been some amendments to the initial draft, which was published in January 2017, the final version of the ACAS Guide ‘Managing Gender Pay Reporting’ is now available. The most notable amendment was that the obligation now also applies to public authorities.

Employers have been wondering how the data will be displayed on the government website. Well, the wait is over as the website is now live and at the time of writing, six employers have already uploaded their gender pay gap information.

You can view it here: https://gender-pay-gap.service.gov.uk/Viewing/search-results

The government website

The website has two sections; ‘find employer’ and ‘download data’.  In the ‘find employer’ section, companies are listed by name, address and sector. There is also a function to filter the list of employers by reference to one of 22 sectors.

When selecting the company, the gender pay gap figures are displayed on three ‘tabs’ (1) hourly rate,  (2) pay quartiles, and (3) bonus pay. Surprisingly, despite there being a requirement to publish data relating to the proportion of males and females receiving a bonus payment and the proportion of males and females in each quartile band; the website does not provide this data and I wonder whether this is an omission which will be corrected.

The name of the person responsible for the employer’s report is also clearly stated on the page together with their job title. However, this is not a requirement for public sector employers.

Interestingly, despite the ACAS Guide suggesting that employers’ should provide a narrative to support their gender pay gap report there is no section on the website that enables you to document a supporting narrative.  

The Regulations also state that the information must be published on the employer’s website ‘in a manner that is accessible’.  Many employers are waiting to see how others are publishing the data on their respective websites. At the time of writing, there are two examples of how this has been done and can be seen via the following links:

http://www.contractorumbrella.com/genderpayreporting.html https://www.fdmgroup.com/uk/investors/gender-pay-gap-reporting/

The ‘download data’ section collates all employers’ data into one Excel spreadsheet. With only six companies having published so far, I do wonder whether this spreadsheet will become more sophisticated once greater numbers of employers have uploaded their data. Currently listed in alphabetical order, I also query whether over time, business sector may be included in the spreadsheet to enable the data to be compared by sector thus enabling greater analysis and comparison of the gender pay gap to take place.

Action required

It is important that relevant employers (any organisation that has 250 or more employees) are collating their gender pay gap data and preparing it for publishing.

If you have any questions regarding your obligations to gender pay reporting or any other employment law matters please contact Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453).  For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.  

Other useful links

Government website: https://gender-pay-gap.service.gov.uk/Viewing/search-results

ACAS Guide: http://www.acas.org.uk/media/pdf/m/4/Gender_Pay_Reporting_GUIDE3.pdf

Friday
Apr072017

Subject Access Requests: an Employee’s Motive is Irrelevant

In her latest Blog, Angharad Ellis Owen talks about Subject Access Requests in relation to the Data Protection Act 1998.

Under Section 7 of the Data Protection Act 1998 (DPA) an individual has the right to ask what personal data is held about them and to ask for a copy of that data.  This is commonly known as a Subject Access Request (SAR).

A SAR must be made in writing and a data controller (e.g. an employer) is obliged to comply with the request promptly and within 40 days of receipt, if it has received the necessary information from the individual.  Where an employer has failed to comply with the SAR provisions, an individual can ask the Information Commissioner to intervene.

There has been a recent trend for employees, or former employees, to use SARs as a means of obtaining evidence from employers to pursue grievances, seeking documents that may assist in litigation or using the process as a means of making life difficult for employers in order to encourage a settlement.

The obligation on employers to comply with SARs can be onerous and time-consuming. An employer will have to search computerised and non-computerised records for personal data. With the increased use of electronic communication, the volume of personal data can be extensive.  Employers also have to take care to protect the personal data of other individuals who may be identified as part of the search.

Historically, the Courts have held that the main purpose of a SAR was to allow an individual to check how their data was being processed and whether it infringed their privacy.  However, the Court of Appeal has recently considered the motives behind SARs and how they interrelate with ongoing litigation.  The Court has confirmed, as a principle, that a SAR may still be valid even if it is made for the collateral purpose of assisting with litigation.  The Courts have recognised that there is a need for proportionality, but it will fall on an employer to demonstrate that the supply of the information would involve a disproportionate effort.

Action

It is important for businesses and organisations to protect themselves with appropriate training and ensure that their IT and electronic communication policies are robust. It is also important to review, monitor and comply with the organisation’s Data Protection policy.

Useful link

The Information Commissioner has published a Code of Practice on dealing with subject access requests https://ico.org.uk/for-organisations/guide-to-data-protection/.

If you have any questions regarding the Data Protection Act 1998 or any other employment law matters please contact Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453).  For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

Friday
Mar032017

Employment Tribunal Judgments Available Online

It’s been a long time coming, but the Employment Tribunal has finally been dragged into the modern age. The online database of Employment Tribunal Judgments in England, Wales and Scotland is now live.

In the past, access to Employment Tribunal Judgments was restricted to those willing to search the dusty records held in Bury St. Edmunds (for England and Wales) or Glasgow (for Scotland). The new online database provides free and instant access to Judgments. The change is likely to have a significant impact on whether grievances are pursued in the Employment Tribunal, and the way in which employers vet potential employees.

A selection of decisions from 2015, 2016 and 2017 are currently listed on the database, with all future Judgments to be added as soon as they are publicised. It is not yet known whether existing Judgments will be added. It is likely that the number of records involved may make the task almost administratively impossible.

Perhaps the most useful tool on the new database is the ability to carry out a free text search. This means that employers will be able to search for an individual by name. Likewise an employee or other organisation can search to see if the employer has been involved in previous Tribunal proceedings.

From an employee perspective this may be an incentive to attempt to settle the claim before issuing proceedings. Employees are unlikely to want prospective employers to know that they have issued proceedings against their previous employer. However, if that employee’s previous claim was for discrimination they will be protected from victimisation by the new employer. A rejection of the potential employee’s job application because of a previous discrimination claim would be unlawful. 

From an employer’s perspective the publication could affect their reputation. It is also possible that confidential or commercially sensitive information mentioned in evidence is referred to in the Judgment and made readily available online. This in turn may impact the employer’s recruitment and retention of staff. It also remains to be seen whether existing employees use the information to further their own grievances/claims against the employers, particularly in relation to discrimination claims.

It will be interesting to see whether this new initiative will encourage the parties to settle claims earlier to avoid their name appearing on the database.

If you have any questions regarding employment law matters please contact Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453) or Greg Jones (gregjones@greene-greene.com ~ 01284 717446).   For more information on the services offered by Greene & Greene Solicitors please visit http://www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

Wednesday
Feb152017

Reforms to the Taxation of Termination Payments

Often an employer will pay a lump sum to an employee on severance of the employee’s contract, commonly known as a “termination payment”.  Historically how such termination payments are taxed has often caused confusion for employers, employees and their advisors.

Following an HMRC consultation in summer 2016, draft legislation was published in the 2016 Autumn Statement reforming the taxation of termination payments.  The changes (which will apply from 6 April 2018) have been introduced by the UK government in order to simplify the taxation of termination payments and close those loopholes in the existing legislation that incentivise employers to structure arrangements in a manner in order to minimise income tax and National Insurance Contributions (NICs).

The key proposals are as follows:

1.  £30,000 tax free threshold 

  • Current legislation states that employees may receive the first £30,000 of any termination payment free of income tax and NICs.
  • As of 6 April 2018, employers are required to account to HMRC for employer NICs liability (currently at a rate of 13.8%) on any termination payments over and above the £30,000 tax free amount. 
  • This measure is clearly aimed as a deterrent for employers to structure their payments which should be treated as “earnings” as termination payments in order to avoid an employer NIC charge.  Employees will continue to benefit from the employee NICs exemption for payments associated with the termination of employment.
  • The draft legislation does not outline the way in which the employer NIC will be collected.  However, HMRC has stated in its policy paper for the draft legislation that it is anticipated that the charge will arise and be paid in “real time” rather than at the end of the tax year in which the payment is made.

2.  Payments in lieu of notice (a “PILON”) 

  • Under current legislation, the taxation of a PILON can vary depending upon its nature, for example, a PILON can be contractual or paid as damages for loss of notice. 
  • Irregularities in the legislation have meant that in certain circumstances, PILONs have been regarded as “earnings” for tax purposes, and therefore able to fall within the £30,000 tax free exemption received in connection with the termination of employment.
  • In order to simplify the legislation, from 6 April 2018, all PILONs will be treated as “earnings” and will be subject to income tax, employer’s and employee’s NICs, no matter how the employee’s employment contract is drafted or whether payments are structured in some other form, such as damages.

If you have any questions in relation the taxation of termination payments, please contact Natalie Stoter on nataliestoter@greene-greene.com or 01284 717462 (Direct), or in relation to termination payments more generally, please do not hesitate to contact a member of the Greene & Greene employment team visit www.greene-greene.com and follow @greenegreenelaw