Employment Eye October 2017

Welcome to the October 2017 edition of our employment law report: our monthly round-up of key employment law developments and what they mean for you.

New data protection regime: five key points for HR

May 2018 is fast approaching – the implementation date for the Data Protection Bill / General Data Protection Regulation. Jodie Sinclair sets out five key points for HR practitioners.

Whilst HR practitioners and others working with employment law will now be well aware that the UK's adoption of the General Data Protection Regulation (GDPR) is on the horizon, the nitty-gritty of how that implementation will happen was revealed at the end of September 2017, when the government published the Data Protection Bill ('the Bill') which will become the Data Protection Act 2018.  Once in force, the Act will replace the current Data Protection Act 1998.  The Bill is a huge document, so we have pulled out five key areas that impact on workforce issues. Please click here to view the full text of the Bill and its progress through Parliament.

1. Preparing for an evolution not a revolution

Although the Bill introduces some important changes to data protection law, it is a development of the current law, rather than a wholesale change.  Many of the big concepts with which HR practitioners are familiar - such as subject access requests and consent for processing data - will be retained.  However, the new Bill requires a more streamlined and considered approach.  Data processors will need to stop and think about why data is being retained, how long it needs to be stored and whether any unneeded data should be deleted – keeping an employee's documentation 'just in case' will not be an option.  So, now is the time to start streamlining and reviewing your data processes, and considering if there is a specific reason why employee data needs to be retained.

2. You may need to appoint a data protection officer

You will need to appoint a data protection officer (DPO) if any of the following apply to you.

• You are a public authority or body.
• You are undertaking processing operations, which, by virtue of their nature, their scope and their purposes, require regular and systematic monitoring of data subjects on a large scale.
• Your core activities consist of processing special categories of personal data on a large scale and data relating to criminal convictions and offences (see Articles 9 and 10 of the GDPR and section 13 of the Bill)

It is possible for several entities to share the same data protection officer – the Explanatory Notes to the Bill give the example of police forces having one DPO per region.  However, a DPO must be someone with suitable skills and training, and any other activities (such as sitting on a Board) must not conflict with their role as a DPO.

3. Subject access requests are changing (a bit)

We are increasingly seeing subject access requests under the current Data Protection Act being utilised by savvy claimants seeking evidence to support their employment tribunal claims.  The right to make a subject access request will be retained under the Bill, but no fee can be charged, unless the applicant requests further copies of documents or the request is excessive or manifestly unfounded. Individuals will also have to be provided with additional information as part of the response to their request.

Subject access requests will need to be complied with without undue delay and usually within a month from receipt (although there is provision for extending that time by a further 2 months in particularly complex cases). The current time limit is 40 days from receipt. Data processors will, therefore, need to ensure that they have effective processes in place for identifying and responding to requests – the fact that a request has landed on the wrong person's desk and has not been picked up will not be a valid excuse for non-compliance.    

4. Automated decision making will be more regulated

A striking new feature in the Bill relates to restrictions on automated decision making. Under section 13 of the Bill, if a data controller makes a 'significant decision' based solely on automated processes, then the data subject must be notified as soon as possible and has the right to request that the decision is re-considered or re-taken by an actual person.    A 'significant decision' is defined in the Bill as one which has legal effect on the data subject or significantly affects the data subject. This is, therefore, likely to affect a range of HR functions which rely on automated assessment / AI, particularly where resourcing technology is utilised to undertake initial sifts of candidates for recruitment or promotion.

For further information on the impact on AI on recruitment and HR, please see Sarah Maddock's recent article in HR Manager magazine on the increasingly strained relationship between regulatory safeguards and the growth of automation and AI in HR.

5. The new rules will still apply post-Brexit

Once the UK leaves the EU, the GDPR will no longer automatically be part of our domestic legislation by virtue of our being a member state.  However, one of the key functions of the Data Protection Bill is to essentially draw the GDPR into UK law.

The Bill has been designed to be 'Brexit proof', which means that we will have a stand-alone data protection law in the UK, albeit one that it intrinsically linked to the GDPR. The purpose of aligning our law with the GDPR is to ensure that data transfers between the UK and EU remain as simple as possible.

Finally, note that it is important that you start work on ensuring compliance with the new data protection regime, as the penalties for non-compliance are increasing. Under the current Data Protection Act 1998, the maximum penalty the Information Commissioner can impose is £500,000.  Once the new Act is in force, the maximum penalty will be £18million or 4% of global annual turnover.  More administrative breaches of the Act will attract a fine of up to £7.9million or 2% of global turnover, whichever is the greater. Having said that, the Information Commissioner has made it clear that there will not be a scaling up of fines: conduct that warranted a £10,000 fine under the 1998 Act will warrant a similar fine under the new Act.

We are currently assisting clients with preparing for the forthcoming data protection regime. If you would like any further information please do contact me, or Jonathan Moore in our Information Law team. We can provide training for your HR team and general managers, as well as data protection compliance audits and action plans.

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Too much information?

Does including too much information in a disciplinary investigation make a dismissal unfair?  Anne Palmer reports on a recent EAT ruling on this point.

The background

The test for whether a misconduct dismissal is fair or unfair is based on a combination of statute and case law.  A dismissal may be fair for misconduct reasons, under section 98 of the Employment Rights Act 1996, and this section was interpreted in the well-known 1978 case, British Home Stores Limited v Burchell, as meaning that an employer must

• believe the employee to be guilty of misconduct

• have reasonable grounds for that belief; and

• carry out as much investigation as is reasonable.

In addition, the decision to dismiss must fall within the 'range of reasonable responses' that a reasonable employer might have adopted. The 'range of reasonable responses' test applies to both the decision to dismiss and the investigation.

In general, expired disciplinary warnings should not be taken into account when making a decision to dismiss, but they may form the 'backdrop' to a decision in certain circumstances (please see our article, Trouble Ahead, for the latest position on expired warnings and a summary of previous caselaw).

The facts

In NHS 24 v Pillar, the claimant, Ms Pillar, was employed by NHS 24 as a Nurse Practitioner. Her role required her to assess patients over the telephone and 'triage' them by assessing their medical priority and advising them on appropriate treatment. On two occasions, Ms Pillar misadvised patients, resulting in Patient Safety Incidents (PSI) but no formal disciplinary action was taken. These two issues were dealt with through training and a development plan.

On a third occasion, Ms Pillar again caused a PSI when she misadvised a patient who was suffering a heart attack to go to an out of hours GP service, rather than call 999.  In response, NHS 24 undertook a misconduct investigation into Ms Pillar's actions, and the final report by the investigating officer included a reference to the two earlier PSIs, as well as the third PSI which related to the patient suffering a heart attack. NHS 24 dismissed Ms Pillar.

Ms Pillar brought an employment tribunal claim against NHS 24, alleging that her dismissal was unfair because the investigation had taken into account the earlier PSIs, which had not led to disciplinary action.

An employment tribunal agreed with Ms Pillar and held that her dismissal was unfair (albeit that her compensation was reduced by 70% because she was partly at fault).  NHS 24 appealed to the Employment Appeal Tribunal (EAT).

The decision

The EAT overturned the tribunal's decision and held that the dismissal was fair.

Looking at the test set out in the Burchell case (see Background, above), the EAT noted that the key requirement is whether the investigation is adequate. It felt that conducting an investigation that includes too much detail would not render a dismissal unfair, although the EAT did acknowledge that an "overzealous" or otherwise unfair investigatory process might result in an unfair dismissal.

This was particularly the case given the patient safety issues which were at stake; the exclusion of relevant information by the investigating officer could have been a serious omission, in the particular factual context of this case.

Overall, the EAT decided that it would be irrational to find a dismissal unfair, due to the comprehensive nature of the materials available, especially where there is no particular reason to exclude such details.  That said, the EAT did note that there may be circumstances where details of previous incidents should be withheld from an investigator's report.

Ms Pillar argued (unsuccessfully) that if an expired warning cannot be taken into account when dismissing an employee, then previous conduct which had not warranted disciplinary action should always be kept 'off record' in a disciplinary investigation. The EAT said that an expired warning is different in nature from general information – the fact that a warning is described as 'expired' causes an expectation that the warning no longer a determining factor in a decision to dismiss. However, Ms Pillar had no expectation that her previous PSIs would not be considered in the context of a subsequent disciplinary investigation.

What does this mean for me?

This is a positive development for employers and follows the general direction of travel from the EAT on the status of previous misconduct.  The EAT has confirmed that misconduct allegations do not need to be considered in a vacuum; earlier incidents, even if not categorised as formal misconduct, can be taken into account.

That said, the EAT did note that this is a contentious area, and the specific facts of each case will require close examination.  The EAT seemed particularly concerned, in this case, that the issues related to patient safety.

As a result, investigating officers should not rush to include a plethora of past misdemeanours when producing an investigatory report. Note that the EAT focussed here on the distinction between the role of the investigator report and the decision-maker: it is up to the former to compile all the relevant information and for the latter to decide what to do with it. It is then the decision-maker's state of mind which a tribunal must assess when considering if dismissal was within the range of reasonable responses.

Bevan Brittan provides the full range of support on investigatory process, including

• advice on specific issues arising during disciplinary investigations and proceedings
• drafting or reviewing investigation documentation, such as terms of reference and witness statements
• providing investigators to take ownership of the whole investigation process, including producing the final investigation report.

Please do contact me or your usual Bevan Brittan contact for more information.

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Employment news round-up, October 2017

The latest employment news highlights for October 2017, reported by Julian Hoskins, including: new leave entitlements, pensions changes, an update on ET fee refunds and our regular Brexit update. Details of our next series of employment training events are also available. 

New leave entitlement for bereaved parents

Draft legislation has been published which will provide a new entitlement to two weeks' leave for parents who lose a child under the age of eighteen.  The leave will have to be taken within fifty-six days of the death of the child.  The full text of the Parental Bereavement (Leave and Pay) Bill is available here but, at present, no implementation date has been announced.

Employees with twenty-six weeks' continuous service will also be entitled to statutory parental bereavement pay, the cost of which employers will be able to recover from the government.

New occupational English test for nurses

As we reported in our June 2017 news round-up, the Health Foundation has reported that there has been a 96% drop in the number of EU nurses registering to work in the UK. It has now been reported that the Nursing and Midwifery Council (NMC) will be easing the English language tests for overseas nurses seeking to work in the UK.  The NMC has not expressly stated that the new tests are designed to assist with the recruitment downturn, but healthcare employers will no doubt be hopeful that it might have this effect.

Employment tribunal refund scheme opens

Three months after the Supreme Court's decision that employment tribunal fees were introduced unlawfully (click here for our briefing) the government has now announced that the first stage of the refund scheme is going ahead.  The full press release is here.  Those who are entitled to a refund will be contacted direct, but it is possible to pre-register claims by emailing: ethelpwithfees@hmcts.gsi.gov.uk

New Acas Guides on Mental Health

The theme for this year's World Mental Health Day, on 10 October, was mental health in the workplace and Acas chose this date to publish its new guidance booklet, 'Promoting Positive Mental Health in the Workplace'.

Acas has also released two further short guides:

• Dealing with Stress in the Workplace – click here for a copy.
• Managing Staff Experiencing Mental Ill Health – click here for a copy.

Modern Slavery – updated guidance

As we come to the end of the first year in which many companies will have published their first modern slavery statement, the government has published updated guidance on Transparency in Supply Chains.

The Modern Slavery Act 2015 requires large businesses to produce a statement each year setting out the steps they have taken to ensure that their business and supply chains are slavery free, or a statement that they have taken no steps to do this.  The updated guidance goes into more detail about the content of modern slavery statements, including what best practice looks like.

Pensions news

• No more staging dates - new employers must comply with auto-enrolment duties immediately from 1 October 2017

We are almost at the end of the 'start-up' phase of automatic enrolment.  On 1 October 2017, we passed a key milestone.

All newly-established employers now need to comply with auto-enrolment duties as soon as they employ a worker.  This affects anyone employing someone else as a worker, for example as a live-in nanny, not just 'traditional' businesses.

What employers will need to do will, of course, depend on the auto-enrolment status of that worker,  If they meet the age and pay thresholds, then they will need to be enrolled into a suitable pension scheme; if not, then the employer will have to monitor their status.  In both cases, the employer will have to certify to the Pensions Regulator that it is complying.

This change signals the end of the staging date: the date that the Pensions Regulator previously communicated to employers on which their duties begin.  We're getting to the point where the obligation to comply will affect all employers, no matter their size or age.

Some existing businesses which were set up recently have staging dates extending to February 2018, and this will complete the staging process.

Employers can still delay enrolment of workers into a pension scheme by up to three months.  This is intended to allow harmonisation with payroll periods, and means temporary or probationary workers need not to be automatically enrolled for a short period, although employers can do so if they wish.

Workers can opt however to join a pension scheme beforehand, so employers will need to have systems and a suitable pension scheme in place from day one.  It will also need to certify to the Regulator via a Statement of Compliance that it does indeed comply with its duties.

The Pensions Regulator has set up a new suite of documents to help new employers who must comply as soon as they employ a worker.

The Regulator has wide powers to obtain information, intervene, impose fines and in some cases bring criminal prosecutions against employers who do not comply with their duties.

• The future of auto-enrolment – could 16 year olds be automatically enrolled?

As auto-enrolment moves on, the Department for Work and Pensions (DWP) is undertaking its legally required review of its progress. One key possible change has emerged from that review. At the moment, workers need to be aged twenty-two or older to be automatically enrolled into a pension scheme, even if they otherwise meet the requirements.  There is now a proposal to reduce the age for automatic enrolment to workers aged 16 and older if they meet the other criteria.

At the moment, younger workers aged from sixteen to twenty-two can opt in to a pension scheme if they otherwise qualify.  Their employer must inform them of this right.  If they choose to opt in, the employer must enrol then them and make employer contributions.

But each worker needs to make this active decision.  This has always been a major bar to widespread take-up of pension saving.  Retirement is unlikely to be a major concern for most 16 year olds, whether they are in work or not, even if there is some recent evidence that this may be changing, in part due to auto-enrolment itself.

There may well be other proposed changes in the near future.  In particular, the government may look at the position of part time workers.  There are two ways they may fall outside the auto-enrolment framework (they may still be able to opt in, just as sixteen – twenty-one year olds can at the moment).

Some part time workers, particularly women, have several jobs, perhaps to fit around childcare.  Their total pay is well over the current £10,000 per year, but no one job meets the criteria.

Others work only one job, but although their hourly rate would qualify them for auto-enrolment if they worked full-time, their hours are too low for this to happen.

We currently expect the DWP to publish its findings following the review by the end of the year.

Please contact Philip Woolham if you have any queries regarding pensions issues.

Brexit and immigration

• The Prime Minister has published an open letter to EU citizens resident in the UK, in an effort to reassure them that they will be able to remain once the UK has left the EU. There will be a new streamlined, low cost online process for those applying for settled status in the UK. The new process will be less onerous than the current scheme for applying for settled status and the online registration process is expected to open at the end of 2018.
• The Home Secretary, Amber Rudd, has also announced that the Home Office will publish a White Paper on immigration before the end of this year and that the new Immigration Bill is expected to have its first reading in the House of Commons in January 2018.

Please contact Ashley Norman if you have any queries regarding workforce immigration issues.

Events and training   

Employment law update and lunch

Our popular annual round-up of the year's key developments in employment law, and preview of forthcoming changes, will take place in London on 14 December, Bristol on 5 December, Leeds on 6 December and Birmingham on 7 December.

Registration opens at 9.30am, and the morning's update is followed by a networking lunch at 1.00pm. This is a free event. For full details and booking arrangements please click here.

Key topics will include

• employment status, 'gig working' and the Matthew Taylor review on 'Good Work'
• holiday pay and voluntary overtime
• redundancy and sickness absence
• Brexit
• privacy and employee monitoring – a U-turn from the European Court of Human Rights
• dress codes and equalities – balancing competing rights
• the GDPR / Data Protection Bill
• whistleblowing – shaping the new 'public interest' test
• pensions
• changes on the horizon.

Places for this event are already filling, so please register as soon as possible!

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If you would like to discuss any of these topics, or any other aspect of Employment Law, please contact Head of Employment, Jodie Sinclair.