Blog: Leaving ‘gifts’ from employees

We learned that in the early hours of Friday, 3 November something remarkable happened. Donald Trump’s twitter feed was “deactivated” for 11 minutes. Some wags have said that it rendered the President uncharacteristically mute for a short period. After some initial flannelling by Twitter it emerged that Trump’s account had been deliberately deactivated as a parting shot by an employee at Twitter during their final day of employment.

We often have to advise companies about employees who are departing and who may want to cause difficulties on their way out.  The key is to try to anticipate problems in advance rather than having to mitigate them afterwards.

A very good weapon in an employer’s armoury is the Garden Leave provision.  If you have concerns that a disgruntled employee may try to cause you some problems before they leave then it is a good idea to invoke the clause. You need to balance the desire/need to have your employees work up until the last minute so that they are earning their money, against reducing the risk for them creating problems. The other advantage of a garden leave clause is that they are a much more effective way of preventing an employee from competing with your company than post termination restrictive covenants.

I imagine that over the last two weeks there has been a post mortem carried out at Twitter and some red faces which could possibly have been avoided by a judicious use of a garden leave clause, or for that matter by the making of a payment in lieu of notice.

For advice on your options so you don’t find yourself in a similar position to Twitter you should give us a call, or tweet us if you prefer. Unlike the US President’s, ours works.

Simon Martin
Partner

email or call 0117 325 0929

Newsflash: EAT says Uber drivers are ‘workers’

What do we already know?

We updated you in our November 2016 Newsflash Uber drivers are ‘workers’ on the Tribunal’s decision that drivers who provide services to the online taxi firm, Uber, are ‘workers’, rather than self-employed.

Uber appealed the Tribunal’s decision to the EAT.

What’s new?

The EAT has upheld the Tribunal’s decision that Uber drivers are ‘workers’ and therefore qualify for workers’ rights such as the national minimum wage, 5.6 weeks’ paid annual leave each year, pension scheme and a maximum 48 hour average working week etc.

We understand that Uber are likely to appeal this decision and may even seek a leapfrog appeal to the Supreme Court so that this case can be heard at the same time as the case of Pimlico Plumbers v Smith (see our February 2017 Newsletter Case update (1): Employment status). This case is due to be heard by the Supreme Court on 20-21 February 2018.

We will provide further detail on this case in our November 2017 Newsletter.

 

Case update (2): Sex discrimination – Pregnant workers

Summary: Are pregnant workers protected from the beginning of their pregnancy, even before the employer is aware of the pregnancy?

Yes, says Advocate General Sharpston in Porras Guisado v Bankia SA, available here.

Facts:  The employee, Ms Porras Guisado was dismissed, whilst pregnant, by her employer, a Spanish bank, as part of a collective redundancy exercise.  Ms Porras Guisado disputed her dismissal and her employer claimed that it had not known that she was pregnant. In any event, the employer argued that the redundancy situation was an “exceptional case”, meaning that it was entitled to dismiss her despite her pregnancy.

The case was referred to the CJEU for a preliminary ruling.  Prior to this ruling, Advocate General Sharpston has given her Opinions on the questions raised.  The most relevant of these Opinions to UK employers are:

  • Article 10 of the Pregnant Workers’ Directive prohibits the dismissal of pregnant workers except in “exceptional cases”;
  • The Pregnant Workers Directive requires a broad prohibition on dismissal of pregnant workers;
  • Pregnant workers are protected from the beginning of their pregnancy even if they have not yet informed their employer that they are pregnant;
  • For the dismissal of a pregnant worker to be lawful, there must be no plausible possibility of reassigning her to a suitable post;
  • Pregnant workers do not have to be given priority for retention in a collective redundancy situation, though national law may choose to give them priority;
  • What amounts to an “exceptional case” has to be construed narrowly. A collective redundancy situation will not necessarily be “exceptional”;
  • A notice of dismissal of a pregnant worker must be in writing and state “duly substantiated” grounds regarding the “exceptional case” that permits the dismissal.

Implications:  In the UK, it is generally accepted that a woman will not benefit from the statutory protection on account of her pregnancy from discrimination or dismissal until her employer is made aware that she is pregnant. If this Opinion is followed by the CJEU then this may need to change.  However, no action is required by employers yet.

In particular, if the Opinion is followed by the CJEU, employees who have been notified that they are to be dismissed for redundancy can inform their employers that they are pregnant and the employer would have to reconsider the decision. The pregnant employee will be protected from dismissal unless the employer can justify it as “an exceptional case”.

Case update (1): Unfair dismissal – Investigation

Summary:  Can including too much information in an investigation report, in particular previous incidents which have not been the subject of disciplinary action, mean that a dismissal is unfair?

No, says the EAT in NHS 24 v Pillar available here.

Facts: The employee, Ms Pillar, was employed by NHS 24 (Scotland’s national telehealth organisation) as a nurse practitioner. Her role involved taking telephone calls from members of the public and triaging them by asking questions to decide their medical priority and the appropriate clinical outcome.

Ms Pillar was dismissed for gross misconduct following a Patient Safety Incident (PSI) in December 2013 after she had failed to ask the appropriate questions, which resulted in her referring a patient who had suffered a heart attack to an out-of-hours GP service instead of calling 999.

The investigation report which led to the dismissal for gross misconduct included details of two earlier PSIs.  One of those PSIs was very similar to the PSI incident for which she was dismissed, as it also involved incorrectly referring a patient with cardiac symptoms to an out of hours GP service. The circumstances of the other previous PSI were different, but did involve concerns about the employee’s triage decision making. However, both these previous PSIs were dealt with by way of providing a development plan and additional training rather than disciplinary action.

Ms Pillar brought an unfair dismissal claim in the Tribunal and argued that it was unfair for the investigating officer to have included the earlier PSIs when they had not led to disciplinary action.

The Tribunal held that, although the employer was entitled to treat the latest PSI as gross misconduct in view of the risk to patients, the dismissal was procedurally unfair because it was unreasonable for the employer to include the information about these incidents themselves (as opposed to just the fact that training had been undertaken) in the investigation and this rendered the dismissal unfair as the investigation was not reasonable in all the circumstances.

NHS 24 appealed the decision to the Employment Appeal Tribunal (EAT).

The EAT allowed the appeal and held that the dismissal had been fair.  The EAT referred to the test for fair dismissal which is that in order for a dismissal to be fair an employer must (i) believe an employee is guilty of misconduct (ii) have reasonable grounds for believing it and (iii) the decision must follow a reasonable investigation.

The EAT was unaware of any case in which it had been argued that an investigation failed this test because it included too much information.

Ms Pillar argued that if an expired warning cannot be a determining factor in a decision to dismiss, then surely conduct not treated as a disciplinary matter at all could not be a factor either. The EAT held that the expiry of a formal warning gave the employee a “false expectation” that it would no longer be a determining factor in future disciplinary action. However, in this case no expectation had been created as to whether the earlier PSIs would or would not be relevant to a future disciplinary investigation.

The EAT also held that because the Tribunal had found that the decision to dismiss was within the band of reasonable responses, it was perverse that the Tribunal should then conclude that the dismissal was procedurally unfair based on the fact that Ms Pillar had not been warned at an earlier stage that the earlier PSIs could be referred to in a later investigation. The EAT held that the Tribunal had failed to explore the gravity or context of this procedural defect.

Implications:  This decision is reassuring for employers that including previous issues in an investigation report does not render a dismissal unfair. The EAT has confirmed that the test for a fair dismissal focusses on whether the investigation was sufficient – an employee cannot claim that an investigation report contains too much.

This case is also a useful reminder that the key for fairness of dismissal will be what the decision-maker took into account in their decision regarding previous events or warnings, not what was included at the investigative stage.

It is for the investigator to put all relevant information in front of the disciplinary hearing and for the decision-maker i.e. the manager chairing the disciplinary hearing, to decide what to do with it. Therefore it would not generally matter if the investigation report did contain some unnecessary material, so long as the manager did not rely on it to the employee’s detriment.

The case is also useful to employers in that it indicates that past conduct can be taken into account by an employer when deciding to dismiss, even if disciplinary action was not taken at the time. In this case, the fact that the earlier incidents were addressed solely through training and development did not, in the EAT’s view, create any expectation that future incidents would not be regarded more seriously.

However, employers should exercise caution when relying on previous incidents which are not ‘live’ warnings.  The very fact that, in this case, referring to earlier incidents led to an initial Tribunal finding of unfair dismissal, highlights that employers should be careful when relying on information about previous historic incidents in any decision.

Given the complexity in deciding whether it is fair to take into account previous incidents when deciding to dismiss, please do take advice from us at Menzies Law on 0117 325 0526 if you are faced with any uncertainty on this.

Government reforms (1): Data protection bill

What do we already know?

 We updated you in our April 2016 Newsletter Government reforms Government reforms (1): Data protection – changing times… and our June 2016 Newsletter Government reforms (2): data protection changes – guidance on its way about the new General Data Protection Regulation (GDPR), which will replace the current EU Data Protection Directive and national data protection legislation (for the UK,  the Data Protection Act 1998).

We updated you in our November 2016 Newsflash Data protection – changing times that the Government has confirmed that the UK will be implementing the GDPR in May 2018.

We updated you in our September 2017 Newsletter Government reforms (1): Data protection – towards GDPR that the Government had published a statement of intent on the planned Data Protection Bill which is to repeal the Data Protection Act 1998 and help to incorporate the GDPR into UK Law.

Information from the Information Commissioner’s Office (ICO) on the content of the GDPR is available here.

What’s new?

The Data Protection Bill (DPB) has been published and is making its way through Parliament towards approval.  The DPB is available here, but beware it’s 218 pages long!

The intention is that the DPB will repeal and replace the current Data Protection Act 1998 (DPA) and provide “a comprehensive and modern framework for data protection in the UK“.

However, it is worth noting that the DPB does not incorporate the GDPR but rather supplements it.  So from 25 May 2018 when the GDPR applies directly to the EU, including the UK, both the DPB and the GDPR will need to be complied with.  The DPB therefore does not need to replicate the GDPR but instead implements various derogations permitted by the GDPR and also extends the GDPR standards to certain areas of data processing outside EU competence.

When the UK leaves the EU the Government intends that the GDPR will be incorporated into the UK’s domestic law under the European Union (Withdrawal) Bill.

Please note that the DPB may yet well be amended, particularly at Committee stage which is scheduled to start on 30 October 2017. This is the first chance for amendments to be made and will involve a line by line examination of the DPB.

However, the main points to note so far are:

  • ICO:  The DPB provides for the continuation of the Information Commissioner’s role.
  • Conditions for processing:  The data protection principles and the conditions for lawful processing.  The principles (Article 5 GDPR) and conditions for lawful processing (Article 6 GDPR) are the bedrock of the GDPR. They remain in place as the bedrock of the Bill (see Part 2, which applies to most types of processing).
  • Sensitive Personal Data:  The GDPR permits Member States to stipulate conditions for processing “special categories of personal data” (broadly, “sensitive personal data” under the DPA) and criminal conviction data without needing to obtain explicit consent. The DPB therefore aims to provide these conditions and largely replicates the current DPA provisions.  There are exemptions relevant to specific types of organisation as well as several with more general application, such as where processing is necessary for the purpose of:
    • diversity monitoring;
    • to prevent and detect unlawful acts;
    • to fulfil obligations under employment or social security law; or
    • for health and social care purposes (including occupational medicine and the assessment of the working capacity of an employee).

To rely on the conditions organisations should have an appropriate policy document in place when the processing is carried out which explains the procedures to ensure compliance with the data processing principles.

  • Subject Access Requests:  The DPB confirms the requirements in the GDPR. You cannot charge for a Subject Access Request unless repeated or manifestly unfounded or excessive, and you must answer in one month (unless it’s excessive and it can be extended for another two months).
  • Exemptions to individual rights: The DPB replicates certain DPA exemptions to individual rights to information about processing and subject access rights. Including:
    • legal professional privilege;
    • self-incrimination; and
    • management forecasts, negotiations, and confidential references.

This is particularly helpful given the GDPR does not address these points.

  • Children & data processing:  The minimum age at which a child can consent to personal data processing by information society services (e.g. online sellers, search engines and social media) will be 13. Providers of such services will have to take reasonable steps to get the consent of a parent or guardian to offer a child under 13 years the service.
  • Criminal offences:  The DPB introduces new criminal offences of (i) knowingly or recklessly re-identifying personal data that has been anonymised, without the consent of the controller who de-identified the data; and (ii) altering personal data to prevent disclosure following the exercise of a subject access right.
  • Request to provide records:  The DPB replicates the DPA’s prohibition on requiring employees or contractors to provide certain records (including criminal records) obtained via subject access requests as a condition of their engagement, or on requiring the public to request such records in order to obtain goods, facilities or services.  The DPB replicates the DPA provision for directors’ personal liability where an offence is committed with the consent, connivance or negligence of a director.
  • Law Enforcement:  Part 3 of the Bill deals exclusively with Law Enforcement and organisations will only be subject to these clauses if they are:
    • a Competent Authority; or
    • processing for the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.

Schedule 7 lists the Competent Authorities and this includes organisations such as Government departments, Police, Fraud Office, Probation, Youth Offending Teams etc. If you don’t meet the criteria above, you don’t need to worry about this large part of the Bill.

However, if your organisation does fall into the law enforcement category, then your Data Protection Officer has extra specified tasks in clause 69, namely the ability to assign responsibilities, promote policies, undertake audits and deliver training. There is also an additional requirement to have specific audit trails on automated processing ensuring a log of who collected, altered, erased and transferred data amongst other things. For further help, the Information Commissioner’s Office (ICO) has published a checklist entitled “Preparing for the law enforcement requirements (part 3) of the Data Protection DPB: 12 steps to take now” available here.

 

  • Public Authorities: The DPB confirms that where it refers to public authorities or public bodies, it means those organisations that are currently subject to Freedom of Information Act (FOI) provisions. Interestingly it means any organisations brought under FOI in the future may need to consider issues such as DPOs and use of legitimate interests in future too.
  • Data Breaches: As expected, in order to implement the GDPR requirements, any personal data breaches must be reported to the Information Commissioner’s Office (ICO), where there is a risk to an individual, within 72 hours unless there is reasoned justification. The potential derogation for public authorities has not been taken advantage of and they, like all other organisations, could face Civil Monetary Penalties of up to £17m or 4% of the equivalent of annual global turnover (although the ICO can change this). However, the ICO has given reassurance that it will continue to use these penalties as a last resort and they will be proportionate.
  • Fees: The DPB makes provision for the ICO to continue to require a form of notification fees (currently £500 per annum for large organisations, £35 per annum for smaller data controllers). It also appears that the DPB allows the ICO to charge fees for other services too. The ICO will have to publish these fees and have them agreed by the Secretary of State.

Comment:

The DPB imports much of the DPA and contains few surprises.  It is welcome news that the Government’s intention is clearly to retain many of the DPA derogations and exemptions.  Although the DPB is still subject to amendment by Parliament, there is not much time for fundamental change so the DPB does allow organisations greater clarity in their planning for implementation of the GDPR.  However, as the law on data protection is not yet fully settled do continue to watch this space…

Government reforms (2): Family friendly – Parental bereavement leave

What do we already know?

We updated you in our August 2017 Newsletter Government reforms (1): Parental bereavement leave that the Parental Bereavement (Pay and Leave) Bill had been  introduced to Parliament as a Private Members Bill and intended to establish a new right for employed parents to paid leave to grieve on the death of their child.

What’s new?

The Parental Bereavement (Leave and Pay) Bill has now been published, available here. As this Bill, which was originally a Private Members Bill, has now been adopted by the Government it is likely to be passed into law in the near future.

This law will give bereaved parents the right to time off work following the death of a child and will introduce statutory parental bereavement pay for the first time.

The key things in the Bill are:

  • An employee who is a bereaved parent will be entitled to be absent from work for at least two weeks in the period after the child’s death, for each child aged under 18 who has died;
  • The leave must be taken within 56 days of the death and it appears that it must be taken in blocks of a week or two weeks;
  • Regulations will  confirm exactly which relationships will count, for someone to be a bereaved parent;
  • The employee will have protection of their terms and conditions whilst taking bereavement leave (except those covering remuneration) and a right to return, with the detail to be confirmed in Regulations;
  • The Regulations may apply the right to parents of a child stillborn after 24 weeks of pregnancy (a point at which the mother would be entitled to maternity leave in any event);
  • Statutory parental bereavement pay will be introduced for the same two leave weeks, for those employees with 26 weeks’ service prior to the week in which the child dies and who earn over the lower earnings limit (currently £113 per week assuming the same rate is used);
  • Regulations will confirm the rate of pay, which the Bill provides can be set at a fixed and/or earnings-related rate;
  • There will be some notification requirement for entitlement to leave and pay – but this is unlikely to be onerous; and
  • An employee will be someone for whom employer’s NI contributions are paid, so this will extend to many workers (using the same definition as entitlement to SSP).

October 2017 Newsletter – Education sector

It’s October. However, contrary to the spirit of Halloween we aim to help, rather than spook, with our update on the Data Protection Bill, parental bereavement leave and ACAS guidance on mental health in the workplace. Finally we share some haunting tales in our case update in relation to misconduct investigations and references to previous incidents and, finally, an Advocate General’s Opinion that pregnant workers may be protected even when employers are not aware of the pregnancy.

What we’ve been doing in the Education sector recently…

We understand that the government’s equalities office is looking into the situation where some employers are effectively jumping the Brexit gun. Researchers have found job adverts that specify that those applying must have British passports, including for a graduate sales executive in Bristol that required German language skills but restricting the job to full UK passport holders. This carries with it two risks, the first is possible discrimination claims, the other is a potential issue with regard to Immigration. If you have any questions over immigration or visa matters we are pleased to announce we have a strategic partnership with Select Visa Services and we will be pleased to work with you on any such matters.

Simon Martin
Partner, Solicitor
or call 0117 325 0929

 

October 2017 Newsletter – Manufacturing & Engineering sector

It’s October. However, contrary to the spirit of Halloween we aim to help, rather than spook, with our update on the Data Protection Bill, parental bereavement leave and ACAS guidance on mental health in the workplace. Finally we share some haunting tales in our case update in relation to misconduct investigations and references to previous incidents and, finally, an Advocate General’s Opinion that pregnant workers may be protected even when employers are not aware of the pregnancy.

What we’ve been doing in the Manufacturing & Engineering sector recently…

We understand that the government’s equalities office is looking into the situation where some employers are effectively jumping the Brexit gun. Researchers have found job adverts that specify that those applying must have British passports, including for a graduate sales executive in Bristol that required German language skills but restricting the job to full UK passport holders. This carries with it two risks, the first is possible discrimination claims, the other is a potential issue with regard to Immigration. If you have any questions over immigration or visa matters we are pleased to announce we have a strategic partnership with Select Visa Services and we will be pleased to work with you on any such matters.

Simon Martin
Partner, Solicitor
or call 0117 325 0929

 

October 2017 Newsletter

It’s October. However, contrary to the spirit of Halloween we aim to help, rather than spook, with our update on the Data Protection Bill, parental bereavement leave and ACAS guidance on mental health in the workplace. Finally we share some haunting tales in our case update in relation to misconduct investigations and references to previous incidents and, finally, an Advocate General’s Opinion that pregnant workers may be protected even when employers are not aware of the pregnancy.