May 11, 2018

Employment Update Spring 2018

EditorialGDPR Personal Data destroying shredding

After immersing myself in employment and GDPR issues over the winter it’s great to have lighter evenings and to look at the long view.

In our winter edition I promised you some further thoughts on GDPR. It’s a complicated subject and so I am posting a number of specific articles on our web site rather than sending them out. You can find the first one here, GDPR for Employers – An Introduction. I am also helping client’s put together and update their Privacy Notices and Data Protection Policies for their staff and make the consequent amendments to their employee contracts and other policies. If I haven’t contacted you about this and you would like help let me know; just drop me an email.

On a more general employment front we cover a few updating issues and a couple of odd cases and an “old” one.

Talking out of turn

It’s not just in criminal cases that talking about a case can get you in trouble. While under oath and giving evidence witnesses shouldn’t discuss the case with anyone. In one particular case the claimant, a journalist herself was given the warning about this at each adjournment of her evidence. At a break, towards the end of her cross examination, she spoke to another journalist. Unfortunately for her she was overhead by others including some of the respondent’s representative team. After long deliberation the ET concluded that they could no longer trust the claimant and struck out her claim. She appealed to the EAT but they decided that the ET could correctly conclude that there had been a breakdown in trust such that they had no alternative but to strike out the claim.

GDPR – Documents go the way of all flesh

Right to Work Documents

The Windrush landing card problem highlights a number of employment issues. Employers need to check staff have the right to work in the UK. The Home Office guidance confirms it is advisable to ask everyone for evidence of this so as to avoid discrimination. However recent case law also highlights a problem with this.

The case made it clear that it is unfair to dismiss someone who has the right to work in the UK and is not subject to immigration controls but who may not have proof or documents on the list as acceptable evidence of this right. Therefore if someone is unable to provide the documents set out in the Home Office list A or B you should get further advice as a matter of urgency. Employing them if they have no right to work is a criminal offence but dismissing them if they do have the right to work and they just don’t have the documents is likely to be an unfair dismissal.

Tension between GDPR principles

Another angle on this relates to data protection and GDPR. The bone of contention in the Windrush generation problem is proving length of residence in the UK. The destruction of the landing cards, for many, makes that more difficult to prove. Data protection legislation (including under the 1998 Data Protection Act) dictates that you should destroy personal data when you no longer need it. The angle that GDPR takes may be in effect to protect “data subjects” rather than the data itself creating pressure to dispose of information. There is so much data “out there” and many people complain about a big brother mentality and this reinforces an incentive for disposing of data. That may be a good principle and the UK border agency seems to have decided that they no longer had a ground for keeping the landing cards.

Indeed looking at them alone the landing cards might not prove residency rights. So, UKBA, viewing it in isolation may have been justified in deciding that the principle to destroy the old cards so many years after they were produced outweighed the requirement to protect data. There you have it; GDPR has two principles that are in tension. There is the requirement to protect data from destruction and the requirement to dispose of it when it is no longer needed.

Should I destroy data?

GDPR requires data controllers to review what data they have, justify why they need it and set a time for its destruction; all to be communicated to the data subject. When you are collecting the data it may be difficult to anticipate that it has long term importance. After all the data is probably collected for a short term need, e.g. landing in the UK. Further you normally can’t keep data for another purpose without informing the data subject. What happens then? Does the destruction date get reviewed when it approaches? If it is reviewed how long should you keep it, where, who should have access and should data subjects be informed etc.? So is it easier to just get rid of it? In many cases that’s undoubtedly the case and long term problems are not considered, or are ignored, to avoid the shorter term hassle.

Should I protect data?

Of course getting rid of data means someone has to decide whether data is still needed. As a family historian I thrive on “old records” about my ancestors. Would we have such rich sources if data protection legislation had been around before the late 20th century? There are provisions in GDPR to protect data which has historical significance. E.g. the rules don’t apply to data about people who are dead and there are provisions for keeping and processing information for “historical research”. That may protect data when it is held in acknowledged archives. However where originally the data was collected for other purposes someone has to realise that it is important and that there are grounds for keeping it. So there may be many more documents, like the Windrush landing cards, which the public would expect and want kept, but will go the way of all flesh.

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Claims Rise

In the period October to December 2017 the number of employment tribunal claims has risen by 90%. The likely cause is the ending of fees for issuing proceedings. The main claims relate to unpaid wages.

Redundancy and Unfair dismissal rates

The compensation limits for claims have risen from 6 April 2018

 

 Statutory Old rate £ New rate £
Maximum weekly figure 489.00 508.00
Maximum compensatory award (in most circumstances) a years’ pay not exceeding 80,541 83,682
Guarantee payments for lay off/short term working per day 27.00 28.00
Statutory Maternity Pay 90% of the employee’s average weekly earnings up to a maximum weekly sum of 140.98 145.18
Statutory Sick Pay 89.35 92.05

The Maternity Pay rates also apply to statutory adoption, paternity and shared parental pay.

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Tax when you leave

Remember when looking at maximum sums which the Employment Tribunal can award these refer to gross pay. The first £30,000 of a termination payment is usually tax free e.g. redundancy payments.

However from 6 April 2018 tax and NI will be payable on all pay given in lieu of notice. The Feb 2018 HMRC Employer Bulletin (updated 1 March 2018) shows that they will split any termination payment into the part attributable to any unworked notice and treat it as normal earnings so subject to tax and NICs. Previously none contractual pay in lieu could be paid free of tax up to £30,000. There is a formula which you apply to the whole termination payment to calculate the element which is the post-employment notice pay “PENP”. Certain termination payments can still be paid free of tax (e.g. statutory redundancy pay) to that level. However from April 2019 termination payments above £30,000 will be subject to employer NICs contributions.

From leaving work to staying at work.

Who is the oldest worker you know? The queen is taking a little more of a back seat at 92 and the Duke of Edinburgh retired from solo official duties last summer. This article from the BBC refers to Dr Frankland still working as an allergy specialist last year. At the age of 105 he still seems to be with us even though he was born before the Titanic sank and the First World War started.

On the other hand Dr Goodall in Australia decided that owing to his diminishing independence he would bring forward his death and travelled to Switzerland for this purpose. The recent loss of the ability to live independently is key. On the work front although he retired from full time work in 1979 Dr Goodall had continued as an unpaid honorary researcher at Perth’s Edith Cowen University. At the age of 102 he had a row with the university who were concerned about his safety. A compromise led him to move offices to one nearer his home. However the isolation from old friends and colleagues made the move less satisfactory than either party may have hoped.

Retirement

The rules about retirement changed back in 2011 when 65 ceased to be a compulsory retirement age in the UK.  Now 7 years on from the change those who were approaching 65 then are now well into their 70s. Skills shortages, reduced pensions, population dynamics, health issues, working styles and many more things have an impact on when people “retire” or at least change job and hours.

Some statistics show that about 1.2 million people over 65 are in work, about 3.75% of the working population in the UK.  Interestingly the main employment rates published by the Office for National Statistics still focus on those aged 16 to 64 as do The Organisation for Economic Co-operation and Development who also refer to those aged 55 to 64 as “those passing the peak of their career and approaching retirement”! How many of you or your workers are now well beyond what was once considered this normal age to put your feet up?

Things come and go

The fit for work referral and assessment service introduced in 2015 came to an end last month. Despite the good intentions there were on average only 650 referrals each month. Fewer than half of the GPs in the UK had referred anyone for the service. Why; some say lack of publicity was the cause others lack of funding.  An online and phone service will still offer some general advice on work and health issues.

References and telling the truth

Employers should get a reference before they take someone on but should they give one to a former employee? In most business sectors there is no requirement on a former employer to give a reference. When they do most of them are the tombstone sort, i.e. John Smith was employed by us from 1 January 2014 to 31 March 2018. But what if you want to go further….

Employers do it?

Employers owe a duty of care and either a former employee or their prospective employer might have a claim if you are unfair or inaccurate. You must exercise reasonable care and skill and provide a true accurate and fair reference. Hence many employers don’t want to go beyond the tombstone. In a recent case an employer told the truth, that an employee was suspended but added his opinion about what the employee did. The conclusion about the “offence” wasn’t one a disciplinary hearing had come to. On this occasion the employer got away with the comment but he was taking a considerable risk.

Employees do it?

On the other hand employees take a risk too. The Risk Advisory Group Survey for 2017 suggests that 80% of CVs contain inaccurate information. Some of that relates to job history so what happens when a reference shows up the discrepancy? If you have already taken the person on then catching them out may not justify dismissal. It is certainly harder if you didn’t make the offer subject to a reference and the accuracy of the information the employee provided. An employer needs to be sure about where the truth really lies and how important that is so talking to the employee in question is vital. Then when the situation is clear then there may be grounds for summary dismissal for gross misconduct.

Got any questions?  Give me a call 01233 714055 or e-mail

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Edit 48. This newsletter looks at new cases and employment related matters, which are likely to be of interest to many. However specialist advice should be obtained before taking or refraining from taking action based on comments in this newsletter, which is only intended as a brief note. For more information or if you have specific concerns phone me on 01233 714055 or e-mail.kirsten@moon-and-co.co.uk. To unsubscribe to our newsletters e-mail kirsten@moon-and-co.co.uk