Coronavirus (Covid-19): LOCKDOWN 3.0 – Government guidance

What do we already know?

We updated you in our August 2020 Newsletter Coronavirus (COVID-19): Updated guidance on returning to the workplace on the 14 workplace guides the Government had published to enable employers to operate safely (known as being “COVID secure”).

What’s new?

The Government has updated the majority of the 14 workplace guides in the series Working safely during Coronavirus, (available here).  This is in light of the lockdown national restrictions imposed in England from 6 January 2021.

The guidance reiterates that attendance at a workplace is permissible if the individual cannot ‘reasonably’ work from home. While the wording differs slightly depending on which sector guidance document it is, the guidance is:

“Currently, you can only leave home for work purposes where it is unreasonable for you to do your job from home. Anyone who can work from home should do so. Anyone else who cannot work from home should go to their place of work.”

However the guidance in these documents is different for individuals classed as ‘clinically extremely vulnerable’. Those individuals are strongly advised not to attend their workplace during the national lockdown. If clinically extremely vulnerable individuals cannot work from home, then they should not work.

On 7 January the Guidance on shielding and protecting people who are clinically extremely vulnerable from COVID-19 (available here) was updated.

There are two ways for an individual to be identified as clinically extremely vulnerable:

  • they have one or more of the conditions expressly listed in the guidance; or
  • their clinician has added them to the shielded patient list.

Employers should consider whether clinically extremely vulnerable individuals can take an alternative role, or change their working patterns temporarily to enable them to work from home. Where that is not possible, employers should not require individuals to attend work, but have a conversation about alternative arrangements including consideration of the use of the CJRS (furlough). If not furloughed, individuals who have been formally advised to shield may be eligible for Statutory Sick Pay (SSP) or Employment Support Allowance (ESA). The formal shielding notification received will act as evidence for the employer that they are advised to shield and may be eligible for SSP or ESA.

clean hands

Government reforms (1): Return of the Gender Pay Gap

What do we already know?

In our April 2020 Newsletter Government reforms (4): Gender pay gap reporting – suspended! we updated you that the enforcement of gender pay gap reporting was suspended for the 2019/20 reporting year, due to pressures on businesses of the COVID-19 pandemic.

What’s new?

Despite suspension of reporting last year, it’s actually the 20/21 reporting year that is likely to concern employers.  They will be required to analyse their pay data from April 2020 at a time when potentially a significant number of their employees had been furloughed on reduced pay and more staff than usual may have been off work due to sickness.  They may also not have had the usual capacity this year to progress initiatives aimed at reducing the gender pay gap.

However, the 2020/21 reporting deadline is now just around the corner, with public sector bodies required to publish their figures no later than 30 March 2021 and all other eligible companies required to do so by 4 April 2021.

As a reminder of the scope of the reporting obligations, employers with a headcount of 250 or more employees must report their gender pay gap using data from a “snapshot date”. For public sector bodies, this snapshot date is 30 March 2020 and, for all other companies, the snapshot date is 5 April 2020. Where a company is part of a group, each separate legal entity with a headcount of more than 250 employees must report its own information, rather than that of the group. Companies with a headcount of less than 250 can also volunteer to report their gender pay gap.

This pay gap information must be submitted online and employers can opt to submit a supporting narrative and employer action plan along with their gender pay gap. All of this information can then be accessed by the public here.

GPG calculations can create quite a burden in terms of time and resource in a year when HR is already rather stretched and furlough of staff may have further complicated your data.  If you need assistance with your calculations and submissions, our Pay & Reward service can help you.

We provide a range of solutions to suit your budget; from a simple ‘sense check’ (reviewing the data you have collected and your calculations) to a full Equal Pay Audit & Assessment.  If you’d like to know more, please contact Lindsey Newman: / 0117 325 0526.

New Guidance

The Government Equalities Office has launched a new collection of gender pay gap guidance (available here).  The guidance breaks down the pay gap process into four steps and features a series of guidance documents which are designed to support employers through the reporting process.

The guidance covers:

  • which organisations are caught by the reporting requirements;
  • what relevant data must be gathered;
  • how to carry out the calculations; and
  • how to publish a pay gap report.

A question that many employers will need to consider this year as a result of the pandemic is how furlough affects their gender pay gap reporting obligations. In summary:

  • furloughed employees should be included when assessing whether the 250 employee threshold for triggering the gender pay gap reporting regulations is met;
  • furloughed employees should also be included in the gender pay gap calculations relating to bonus pay;
  • however, if the employer did not ‘top-up’ furlough pay, the furloughed employees should not be included in the gender pay gap calculations relating to hourly pay.

If gender pay gap calculations are significantly impacted as a result of placing employees on furlough, employers may wish to consider including an explanation for the changes in their narrative.

gender pay gap

Coronavirus (Covid-19): More furlough!

What do we already know?

At the time of our December Newsletter, the Coronavirus Job Retention Scheme (CJRS) was due to end on 31 March 2021, but the Government had said it would review the CJRS in January 2021 to consider whether to ask employers to contribute more.

What’s new?

Following further Government announcements:

  • the Coronavirus Job Retention Scheme (CJRS) will be extended to 30 April 2021;
  • the Government will continue to fund the 80% of wages (up to the cap of £2,500) until the CJRS closes on 30 April 2021;
  • Lockdown 3.0 means the closure again of schools and other education and childcare facilities.

Given the closure of schools, the Government has updated its CJRS guidance (available here) to make it clear that employers can furlough employees who have caring responsibilities resulting from Coronavirus (COVID-19), such as caring for children who are at home as a result of school and childcare facilities closing.

Employers can also furlough employees who, as a result of COVID-19, are caring for a vulnerable individual in their household.

Publication of Employer Furlough Claim Information

One of the major changes to the furlough scheme when it was extended originally, is the publication of information about employers who are claiming under the furlough scheme. Details of employers who are using the furlough scheme will be in the public domain and they should prepare for the potential greater scrutiny that this could bring.

The Government has confirmed that they will be publishing information about employers who claim under the furlough scheme for the period starting on or after 1 December 2020. Initially, HMRC will publish a list of employer names on GOV.UK on 26 January 2021. At some stage in February 2021, HMRC will then start to publish information monthly as follows;

  • Name of employer
  • An indication of the value of the claim by the employer (within a banded range); and
  • the registered company number for companies and LLPs.

The HMRC will in addition be providing information direct to employees about furlough claims, including details of furlough claims made for them, for the claim periods starting on or after 1 December 2020 in their Personal Tax Account.

Publication can be restricted if an employer can show that publishing the information would result in a serious risk of violence or intimidation. For employers who believe they fall in this category, they will need to make a request to HMRC not to publish the information.  Such a request would need to be supported by evidence.

Given the publication of furlough claim information, employers use of the furlough scheme is likely to come under review. We’d encourage employers to review their furlough scheme arrangements to ensure compliance in full.

With estimates of significant fraudulent furlough claims (estimated to be upwards of £3.5 bn) the only surprise is that it has taken HMRC this long to introduce some controls.

definition of furlough

Case update (1): Agency workers – Terms & conditions

Summary:  Are agency workers entitled to apply and be considered for vacancies on the same terms as directly-recruited employees under the Agency Workers Regulations 2010?

No, held the EAT in Angard Staffing Solutions Ltd & anor v Kocur & anor, available here.

Background:  The Agency Workers Regulations 2010 (AWR) were introduced to ensure that the basic terms and conditions of temporary agency staff are the same as those enjoyed by permanent staff (once the agency worker has been in the same role for 12 continuous weeks).

The AWR give agency workers a right, from day one of an assignment, to be informed by the hirer of “any relevant vacant posts with the hirer, to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer”.

Facts:  Angard Staffing Solutions (ASS) is an employment agency owned by Royal Mail and which exclusively provides agency workers to Royal Mail when it has a surge in demand for postal workers. Staff engaged by ASS brought claims against both ASS and the Royal Mail.  The claimants were held to be “agency workers” and alleged a broad range of breaches of their rights under the AWR.  Other aspects of this litigation reached the Court of Appeal in 2019 (see our August 2019 Newsletter here).

The EAT has made further decisions in respect of this case which helpfully clarify how the AWR rights operate in practice, and how far they go to ensure that agency workers are treated equally as compared to directly recruited employees.

The EAT held that:

  • the right to information about a vacancy (see Background) does not encompass a right to apply and be considered for the vacancy on the same terms as directly hired employees.  In this case Royal Mail was therefore entitled to give preference to direct hires by advertising posts internally first;
  • it was not a breach of the AWR for agency workers to be given different shift lengths, break schedules, availability of overtime, opportunity for training during working hours, or information on payslips when compared with direct hires. These provisions were not covered by the right of agency workers to the same basic terms and conditions in relation to pay and working time.
  • a term relating to when a pay rise was implemented would be covered by the AWR. The issue was remitted to the Tribunal to determine whether there was an implied term in the contracts of directly-hired employees that any pay increase would be implemented within a reasonable period of time and, if so, whether this was breached by implementing the pay rise for agency workers six months later than for direct hires.

Implications: This is a very helpful EAT decision for employers who use agency workers. The decision provides useful examples of how the rights granted to agency workers under the AWR apply in practice.  Also, the strict and narrow interpretation should help limit the extent to which agency workers need to be treated equally as compared to direct recruits.

It is particularly helpful for employers in finding that agency workers do not have the right to apply for vacancies on the same terms as direct recruits. Businesses hiring agency workers must provide them with the same information about relevant vacancies as direct recruits, but do not have to allow agency workers to apply for those vacancies on the same terms.

picture of various workers

Case update (2):  Discrimination – Interim relief

Summary:  Do Tribunals have the power to grant interim relief for discrimination claims?

No, but the current absence of interim relief is probably unlawful, held the EAT in Steer v Stormshore Ltd available here.

Background:  Interim relief is where an order is made by the Tribunal for the continuation of the claimant’s employment (including wages) pending the final hearing and decision. Tribunals can make such order where it decides that the employee’s claim is ‘likely to succeed’ (i.e. has more than just a reasonable prospect of success).  The wages paid are taken into account when calculating compensation for a successful claim, but do not have to be repaid if the claim ultimately fails.

The relief is currently available only in automatic unfair dismissal claims, where an employee alleges that the principal reason for their dismissal is whistleblowing, trade union membership or certain employee representative activities.

To date, there is no equivalent remedy for dismissals on the grounds of discrimination.  However, the below case suggests that this may change.

Although interim relief applications have traditionally been rare, the ever-growing backlog of Tribunal claims and greater difficulty finding new employment, mean such applications increasing in popularity.  This trend looks set to continue; particularly if interim relief is extended to discriminatory dismissal claims.

Facts:  The employee, Mrs Steer, brought Tribunal claims for sex discrimination and/or victimisation following her dismissal. She requested interim relief to allow her to continue in her employment for the time it took for the case to be heard.  The Tribunal refused her application for interim relief on the basis of lack of jurisdiction.

The employee appealed to the EAT on the basis that the right to interim relief in discriminatory dismissal claims should be read into the Employment Rights Act 1996. She argued this was required by European Law in particular requirement for equal treatment and/or the European Convention on Human Rights (“ECHR”). The Equality and Human Rights Commission funded the appeal.

The arguments based on European Law were dismissed, but the EAT found that the claimant had made out a breach of Article 14 (prohibition of discrimination) of the ECHR. The EAT considered whether whistleblowing and discriminatory dismissal claims are analogous and whether the difference in treatment in regards to access to interim relief can be justified.  The EAT held that the difference could not be justified.

However, the EAT had no power to grant a declaration of incompatibility under the Human Rights Act 1998 or provide any relief. Therefore the EAT dismissed the appeal but granted leave to appeal to the Court of Appeal so it could consider whether to grant the declaration.

Implications:  We wait to see if the Court of Appeal decides that the current position in UK law (that there is no right to apply for interim relief in discriminatory dismissal claims) is incompatible with the ECHR.  If so, it is likely that the relevant legislation will be changed to make interim relief available in discrimination cases.  This would provide discrimination claimants with the potential to continue working and earning.  It could also provide a powerful new weapon to encourage employers to settle claims, given the costs of defending an interim relief application and the risk of having to continue paying wages for what could be a lengthy period until the full hearing (with no ability to recover those sums).

We’ll be sure to update you on the Court of Appeal’s decision once it becomes available.

discrimination definition

Government reforms (2):  Increase in statutory rates

What do we already know?

Annually in April the annual increase in statutory pay rates come into effect which are normally increase in line with the consumer price index (CPI).

What’s new?

The following proposed increases to statutory payments are expected to be effective in April 2021:

  • the weekly rate of maternity (SMP), paternity (SPP), shared parental pay (SSPP), adoption (SAP) are expected to increase from £151.20 to £151.97 per week.
  • It is expected that SSP will increase from £95.85 to £96.35 per week.

Lower earnings limit

The amount of the weekly lower earnings limit that applies to National Insurance contributions (below which employees are not entitled to SMP, SPP, SAP, SSPP and SSP) is currently £120.  The new 2021–2022 rate has not yet been confirmed.

shared parental leave

Menzies Law Newsletter 2021 Issue 1

Welcome to our first Newsletter of 2021.  Sadly Lockdown 3.0 is not the start to the New Year we were all hoping for. Although we can’t offer any great solutions to the general gloom, we can at least help keep you up to date with HR/employment law news.

The Government has extended furlough again, this time until the end of April and, happily, will continue to fund 80% of wages.  It has also given welcome clarification that employees with caring responsibilities can be furloughed; updated its guidance on working safely during the Coronavirus; and provided further guidance on employer’s Gender Pay Gap reporting responsibilities. We also update you on increases due to statutory rates in April.

In our first case update of 2021 we look at the EAT’s decisions on how far the law goes towards equal treatment for agency workers.  We also consider the current absence of interim relief for employees bringing discrimination claims, which is probably unlawful.

What we’ve been doing recently…

The year has started with a flurry of furlough, gross misconduct, investigations, redundancy and exits advice.  We’ve already won 2 employment tribunals on behalf of our clients, a pleasing start to the year, and we’re helping several businesses navigate the new business immigration rules which came into effect on 1 January.

At the time of writing, Anne-Marie is completing her accredited Workplace Mediation training.  Mediation can significantly reduce the damage, costs and risks of workplace conflicts escalating.  She would be keen to assist any organisation seeking to resolve a workplace issue.  If you would like to discuss how she can help you, please get in touch:

The recent campaign ‘Brew Monday’ by the Samaritans caught our eye this month.  Blue Monday is the third Monday in January and supposed to be the most depressing day of the year.  This year, the number of adults suffering from depression has doubled thanks to the pandemic.  The Samaritans want to encourage us to reach out to friends, family, colleagues for a virtual cuppa.  We’ll drink to that!

https://www.samaritans.org/branches/central-london/brew-monday-2020/

Lastly, do tab down to our last Newsletter item where we bring you 5 good news stories from 2020 which you may have missed. We remain hopeful that 2021 will bring more of the same.

 

Here are all of the Government reforms and case updates we cover this month:

And finally, our nothing to do with employment law section

It’s often said that bad news sells.  Well, we’ve had enough of bad news and we’re surely not alone.  We’d like to share with you some of last year’s good news which may have got forgotten or simply passed you by.  Lots of cause for celebration from these 5 items, we think:

  1. Germany is turning 62 disused military bases from the Cold War-era into wildlife sanctuaries, increasing by 25% Germany’s total area of protected wildlife. Germany has a great pedigree here;  Duisburg-Nord Landscape Park was transformed from a former smelting works 30 years ago and now attracts c. 1 million visitors every year.
  2. Rome’s answer to overflowing waste bins was to create an initiative to allow metro travellers to swap empty plastic bottles for tickets. The City’s inhabitants get Euro 0.05 credit for each plastic bottle recycled. About 30 bottles gets you a free ride.
  3. Captain Sir Thomas Moore raised £33m for the NHS in 2020.  RIP Captain Sir Tom.
  4. Kamal Singh from Delhi became the first Indian dancer to win a place at the prestigious English National Ballet. His achievement is all the more remarkable because he didn’t take his first ballet class until he was 17 (about 10 years after most professionals started lessons) and his family couldn’t afford to pay for lessons. However, Kamal’s exceptional talent was spotted and championed by his Argentinian dance teacher Fernando Aguilera. Crowdfunding did the rest.
  5. Marcus Rashford led a political campaign to combat child food poverty in the UK.  His campaign forced the Government to U Turn on it’s refusal to fund free school meals.  Rashford’s efforts and resilience saw over a million people sign a petition in favour of free school meals. As importantly, his work was the catalyst for dozens of communities and volunteers across the country to deliver food packages to families in need during school holidays.

Case update (1): A constructive unfair dismissal case

Summary: Can an employee be constructively dismissed during a redundancy process when an employer seeks to “map” their role into a new role, rather than treat the employee as redundant?

Yes, says the EAT in Argos Limited v Ms K Kuldo available here.

Facts:  Ms Kuldo, the employee, was employed by Argos, the employer, as a Costs Manager when the company was acquired by Sainsbury’s plc. Ms Kuldo’s role was identified as being at risk of redundancy when the finance function was restructured. She and a colleague were pooled together and told they would both be considered for a newly created role of Central Costs Manager. Ms Kuldo was also given information about proposed collective and individual consultation processes, and given a job description for the new role.

The colleague subsequently resigned leaving only Ms Kuldo in the running for the new role and she was advised that she would therefore be “mapped” into it. Mapping was the process adopted by Argos to decide if an existing employee’s role was redundant or whether there was a role in the new structure into which they could transfer. For mapping to take place Argos applied a 70:30 metric – there must be no more than 30% difference between the old and new roles.

Argos were of the view that in this case the two roles were sufficiently similar to map Ms Kuldo into it, and that she was no longer at risk of redundancy. However, Ms Kuldo disagreed, believing the new role to be of lower status, less responsibility and including a change of job content. She believed it to be more than 30% different to her original role. She set this out in writing, including some counter proposals and this was treated as a grievance by Argos.

After both the grievance and an appeal were unsuccessful Ms Kuldo resigned and brought a Tribunal claim of constructive unfair dismissal.

Tribunal decision

The Tribunal upheld Ms Kuldo’s constructive unfair dismissal claim. It decided that the absence of any proper consultation with Ms Kuldo, the failure to assess properly the differences between the two roles and the failure to conduct a proper assessment for Ms Kuldo’s appeal were all breaches of the implied term of trust and confidence entitling Ms Kuldo to resign in response.

Argos appealed.

EAT decision

The EAT allowed the appeal in part. The Tribunal was entitled to find that Ms Kuldo had been dismissed. An employee can show that they have been dismissed if the:

  • employer has committed a breach of contract;
  • breach is sufficiently serious to be repudiatory;
  • employee has resigned in response; and
  • employee has not affirmed the breach of contract (for example by delaying too long before they resign).

In this case the Tribunal had identified breaches of the implied duty of trust and confidence, assessed that they were repudiatory, and found that the employee had resigned in response. That was a conclusion that the Tribunal was entitled to reach on the evidence. However, the Tribunal had assumed that because Ms Kuldo had been dismissed, the dismissal was necessarily unfair. It had not considered the issue of fairness directly as it should have done. That question had to be remitted to the Tribunal, which would also have to consider whether the employee was entitled to a redundancy payment and whether the new role amounted to suitable alternative employment.

Implications:  It is relatively unusual for an employee to resign in a restructuring scenario if they have been offered a role in the new structure on the same terms and conditions. However, this case is a reminder that it is essential for employers to follow fair and reasonable procedures when carrying out redundancies, particularly where an employee’s job content changesThis is the case even when the employer’s intention is that the employee should continue in employment.

In summary, employers who are “mapping” roles must carefully and thoroughly assess the differences between the roles, and follow their own policies and guidance in doing so. They should also take the time to consult with employees, giving them information about the changes in role and taking concerns raised by employees into account in decision making.

Case update (3):  An employer is justified in discriminating against an employee if the actions reduce company costs and the employer is suffering an absence of means satisfying the ‘COSTS PLUS’ rule

Summary: Is an employer justified in discriminating against an employee if the actions reduce company costs?

Yes, says the Court of Appeal in Heskett v Secretary of State for Justice available here, if the employer is suffering an ‘absence of means’.

Background:  Where a provision, criterion or practice (“PCP”) planned by an employer impacts on a section made up of employees with the same protected characteristic, such as age, this can amount to indirect discrimination.  This does not necessarily prevent the employer from lawfully carrying through their plan, but the employer would need to show that the PCP they are applying is a proportionate means of achieving a legitimate aim – in other words it was “justified”.

Justification of indirect discrimination requires more than simply a need to save money – case law shows that cost alone cannot amount to a legitimate aim and an attempt to defend a claim on that basis is doomed to fail.  Instead, justification requires something more than cost alone – i.e. what has become known as the “costs plus” rule.

Facts:  The employee, Mr Craig Heskett, was employed as a probation officer in the National Offender Management Service (NOMS), which had its budget set by the Ministry of Justice.

The Ministry of Justice operated a system of increasing pay for each year an employee had been in the job. However, as a result of Government austerity cuts in 2010, these annual increases were much reduced from 2011 onwards. This change in policy disproportionately affected younger employees such as the employee, because a higher proportion of older employees would have reached the top of their pay band or progressed further up it, having moved up at quicker rate.

The practical effect of this was that under the old policy it would take the employee 7 or 8 years to progress to the top of his pay band, but under the new policy it would take 23 years.  Pension contributions would also be affected.  Meanwhile, older employees who were already at or near the top of the pay band would earn significantly more than younger employees at the bottom of the scale.

In 2016, the employee brought proceedings against the employer for indirect age discrimination under s.19 of the Equality Act 2010, on the basis that the rate of pay progression for his job disproportionately disadvantaged younger employees such as himself.

NOMS argued that the change in policy, if discriminatory, was justified as it not only saved costs by cutting pay, but also enabled it to “live within its means“, and that was a legitimate aim. NOMS also said that the change to policy was a temporary measure and it was giving active consideration to amendments to reduce the age-discriminatory effect; the change was therefore proportionate.

Tribunal decision

The Tribunal found the policy was, on the face of it, indirectly discriminatory, but that it was justified.

The Tribunal drew a distinction between cost-cutting on the one hand and an absence of means on the other.   It was the Tribunal’s view that the employer was not relying on cost-cutting to justify its discriminatory conduct, but rather, the absence of means created by the significant downturn in the economic climate which forced the employer to take the actions it did. As a result, this absence of means, and the fact that it was a short term measure, meant this was a proportionate means of achieving its legitimate aim.

The employee appealed.

EAT decision

The EAT upheld the Tribunal’s decision and found that it was entitled to draw a distinction between the absence of means and an employer seeking to solely rely on cost as a justification.

The employee appealed.

Court of Appeal

The Court of Appeal considered previous case law on the use of ‘costs’ as justification for a PCP. The Court confirmed that an employer cannot justify making a lower payment to an employee simply because it would cost more to pay them the same as another employee. If the employer’s aim is solely to save costs, that will not be enough to justify the discrimination. However, the requirement for an organisation to ‘live within its means’ according to budgetary constraints was potentially a legitimate aim. It is for the Tribunal to look at the employer’s overall aim, in order to decide whether that aim is legitimate.

In the current case, the Court agreed that NOMS’s aims could not simply be described as cost cutting. NOMS needed to reduce expenditure in order to balance its books and live within its means and this could constitute a legitimate aim for the purposes of justification.

The Court then went on to consider whether the implementation of the new pay scale was a proportionate means of achieving that aim. It found that it was in circumstances where:

  • the new pay policy was detrimental to all in the sense that all employees were receiving increases in pay that would mean that their real income was falling once inflation is taken into account. The new pay policy was crafted to distribute that pain in as fair and equitable a way as possible given the constraints NOMS was subject to; and
  • NOMS recognised that the level of indirect discrimination requiring justification would inevitably rise the longer the new scheme remained in place, and intended to take steps to address this over time.

Implications:

This decision is a helpful clarification of the “costs plus” principle (meaning that costs alone could not be used as justification for an act of indirect discrimination). It demonstrates what can be a subtle distinction between 1) using cost as justification, and 2) reducing costs in order to achieve the legitimate objective of operating within constrained finances due to an “absence of means”.  If an employer can provide evidence that the latter is the motivation behind a PCP, it will have a greater chance in succeeding in defending a claim for indirect discrimination. Exactly what evidence of a need (rather than a desire) to reduce costs will be sufficient to satisfy a Tribunal remains to be seen.

However, employers should also note that even if an “absence of means” exists to present a legitimate aim, actions taken by the employer must still be proportionate to achieving that legitimate aim.  For example, in this case it was very helpful for the employer that they were able to say that the changes to policy were only temporary. Employers should always carefully consider all the options that are available, to satisfy themselves (and a Tribunal) that there is no less discriminatory way of “balancing the books”.

Data protection: ICO Guidance on subject access requests

What do we already know?

We updated you in our January 2020 Newsletter Data Protection: ICO Data Hub & Subject Access Requests  that the Information Commissioner’s Office (ICO) had opened a consultation on its new, more comprehensive, draft guidance on dealing with subject access requests.

The right to make a subject access request, broadly, allows individuals to find out what personal data is held about them and to obtain a copy of that data.

What’s new?

The ICO has published new detailed guidance (available here) on responding to Data Subject Access Requests (DSARs) under the General Data Protection Regulation 2018 (GDPR).

The updated guidance provides more support and clarification on “some aspects of the law that aren’t so clear cut”. Key developments for employers responding to employee DSARs include:

1. ‘Stopping the clock’ when clarifying the scope of the DSAR: The new guidance confirms that an organisation can potentially stop the clock on the calendar month time limit for responding if clarification on the scope of the DSAR is required. However, this clarification request needs to be made “as quickly as possible” and must be genuine, and only when the organisation processes a large amount of information about the individual. Organisations should not seek clarification on a blanket basis in an attempt to buy more time to deal with the request.

2. Defining “manifestly unfounded” or “manifestly excessive”: The ICO’s original summary guidance on DSARs states that an organisation can refuse to comply with a DSAR if it is “manifestly unfounded” or “manifestly excessive”. The new guidance explains further what these definitions mean in practice.

  • Manifestly unfounded”: where the individual clearly has no intention to exercise their right of access or the DSAR is intended to be malicious and is being used as a way of harassing the organisation, with no real purpose other than to cause disruption;
  • “Manifestly excessive”: to determine whether a DSAR is manifestly excessive, an organisation will need to consider whether the DSAR is proportionate when balanced with the burden of costs involved in dealing with the request. All circumstances of the DSAR will need to be taken into account including: the nature of the requested information; the context of the DSAR and relationship between the individual and the organisation; whether a refusal to provide information or acknowledgment that the organisation holds it would cause substantive damage to the individual; the organisation’s available resources; whether the DSAR largely repeats previous requests and a reasonable interval has not elapsed; or whether it overlaps with other DSARs.

The guidance emphasises for each DSAR to be considered individually and warns organisations against applying a blanket policy. Organisations need to be prepared to justify why they consider a DSAR to be manifestly unfounded or excessive if challenged by the ICO.

3. Defining a “reasonable fee”: In the majority of cases, an organisation will not be able to charge a fee to comply with a DSAR. The summary and new detailed guidance, however, highlights that an organisation can charge a “reasonable fee” for the administrative costs of complying if the DSAR is manifestly unfounded or excessive or the individual requests further copies of data following the DSAR.

The new guidance explains that an organisation should take into account the following when determining a reasonable fee:

  • assessing whether or not the organisation is processing the information;
  • locating, retrieving and extracting the information;
  • providing a copy of the information; and
  • communicating the response to the individual, including contacting them to inform them that the organisation holds the requested information (even if it is not providing it).

The new guidance states that there could be overlap between the above activities and organisation should be careful not to double charge individuals. The guidance further defines that a reasonable fee may include costs of photocopying, printing, postage and any other costs involved in transferring the information to the individual, equipment and supplies and staff time spent on complying with the DSAR.

data protection