Category Archives: Employment Law

POST-BREXIT – THE FUTURE OF EMPLOYMENT LAW!

… What employers can expect

After a one-year transition period, during which the UK continued to observe the legislative status quo, the country left the EU on 31 December 2021. Can we now expect a huge conflagration of statutes which emanated from Brussels? The answer in the short term, and almost in the longer term as well, is no. To understand why that should be, it is  necessary to go back to basics.

It is important to remember that since 1 January 1973, when the UK joined the EU, not all of our laws have had their origin in the EU. For example, the Employment Rights Act of 1996 is a prime example of domestic legislation which came onto the statute books without reference to or input from the EU. Although changes could be made to such statutes, it would be through the usual domestic legislative process and would depend on the agenda of the Government of the day.

Another point to remember is that it would be a brave Government indeed which sought to remove what are considered in this country to be fundamental employment rights such as the right not to be unfairly dismissed or the right to refuse to work in unsafe conditions. Similarly, it is impossible to believe that any political party of whatever persuasion would seek to remove or reduce the protection against discrimination on the grounds of, say, sex, race or religion or any of the other protected characteristics.

… UK has agreed to maintain all applicable EU Law!
What, then, is the position in respect of those laws which came via EU Directives which were subsequently transposed into domestic law? Can they now simply be expurgated from the UK statute book? Again, at the risk of being negative, the answer is no. Instead, from 31 December 2020, the UK has agreed to maintain all applicable EU law (the so-called “retained law”) until such time as the UK government decides, via normal legislative processes, to repeal or amend them. Such changes will be made without reference to the EU and will not be subject to the jurisdiction of the European Court of Justice (“ECJ”).

… Any legal changes will need to be in line with the Withdrawal Agreement
There is one caveat however: any amendment or appeal of the retained law which has a material impact on trade or investment may be a breach of the terms of the Withdrawal Agreement. This condition reflects the EU’s demand to have a “level playing field”. In theory any such changes could be met with “balancing measures” by the EU which could be, for example, the imposition of tariffs on certain goods provided always it could be proven that any such changes did have an actual adverse effect on trade or investment. No doubt this could prove to be a fertile source of future disagreement unless both sides can reach a peaceful way of living.

… Key areas identified for change
So, having reviewed the basics, what exactly can we expect to see in the post-Brexit world of employment? There are a number of key areas that are the most likely candidates for change as, for the most part, they have been unpopular with employers, employees or trade unions or they were simply not a comfortable fit with the way workplace relations and legal requirements have developed in the UK. Not all of them came about as a result of EU directives but all are ripe for change and are discussed below.

… Discrimination rights to remain but compensation may be limited
As stated above, none of the basic entitlements in this area will change however there may well be a cap placed on financial awards in successful discrimination claims which are currently uncapped. Such a change would bring discrimination awards more into line with those where unfair dismissal has been found. In that case, the maximum compensation award for financial loss is capped at the lower of £88, 519 or 52 weeks’ pay. If discrimination awards were similarly capped there would still be the possibility of an extra award in respect of injury to feelings which are not awarded in cases of unfair dismissal. Therefore, despite any cap which might be applied to the financial award, the possibility of an injury to feelings award of between £900 and £45,000 still make discrimination cases potentially very costly for the employer.

… Trade union law to be scrutinised potentially leading to more positive outcomes for employees
The current position is that where a company does not recognise a trade union for bargaining purposes, it can be forced to do so in certain circumstances. The Central Arbitration Committee (the “CAC”) can order a company to recognise a trade union where it is satisfied that a majority of the workforce in the bargaining unit belong to that union. Where the position is not that clear, the CAC can arrange for a secret ballot of the workforce in that unit. If trade union recognition is supported by a majority of the workers voting and by at least of 40% of the total bargaining unit (whether they voted or not) recognition will be declared by the CAC. This is a low bar to reach and has been unpopular with companies who prefer to deal with their workforce directly.

In addition, trade union membership has fallen dramatically since its high of 13.2 million in 1979 to 6.35 million in 2019 (the last complete year for which figures are available). Put simply, the trade unions are not the force they were 30 years ago in most sectors particularly in the private sector and among younger employees. The ballot requirements could be increased to make forced trade union recognition more difficult.

Likewise, the right to strike may be subject to further tightening up particularly in the transport sector where strikes in 2019 and 2020 led to widespread hardship and financial losses in the sector. Such strikes, even where legal, have a paralysing effect on a crucial sector of the economy. As the country emerges from the COVID 19 crisis, the need for a dependable transport sector to enable economic recovery will be even more important.

…Working Time Regulations could evolve to suit UK labour practices
These Regulations which came into the UK statute book in 1998 were born in the EU and have, in many respects, fitted uncomfortably in the context of UK labour practices. For example, the Regulations established the requirements for the average working week to be limited to 48 hours. The UK was the only member state which failed to adopt that requirement by allowing employees to opt out. As a result it has become commonplace to offer, indeed encourage, employees to sign opt-out agreements agreeing to work those hours necessary for the performance of their job. Some sectors would have suffered more than others had they adhered to the 48 hours limit. For example, doctors in training found that that rule not only limited their working hours but, as a result, their clinical development as well.

Other provisions of these Regulations have also proven to be difficult for employers, lawyers and even judges to understand and those are the ones relating to holiday, specifically:
• the accrual of holiday during long-term sick leave;
• the right to carry over untaken holiday from one holiday year to the next and
• the calculation of holiday pay which under the Regulations includes not only basic salary or wages but also such things as overtime, commission, tips and other benefits. The most likely change here is that in the future holiday pay will be based on basic salary only.
• a new determination of what is “working time” will most likely exclude travel to and from work for peripatetic employees who travel from place to place during their working day. Travel to their first place and work and from their last place of work would not count as working time.

…Transfers of Undertakings Regulations (“TUPE”) may be due for an overhaul
Yet again, the application of these EU-born regulations has given rise to much litigation some of which has made them even more difficult to understand and apply. A prime example of this has been the limitation of the purchasing company’s (“the transferee”) ability to harmonize the terms and conditions of the transferring employees with those of the company’s existing workforce. The only lawful way to do this has been for the transferee to show that the reason for changing terms and conditions of the workforce in order to harmonise them is an “economic, technical or organisational reason entailing a change in the workforce.” Employment solicitors and judges have spent many hours seeking to determine what such reasons might include. It seems likely that changes to these regulations will facilitate such harmonisation.

The rules on collective consultation in the TUPE context are also ripe for change. The current position is that if there is even one transferring employee, collective consultation must take place. One proposed change would be to align the TUPE consultation requirements with those which apply where 20 or more employees at one establishment are made redundant.

…Agency Workers’ rights could be no more
Another very unpopular piece of EU legislation is the Agency Workers Regulations of 2010. Essentially, these grant agency workers who have worked at least 12 complete weeks for the same business the entitlement to the same terms and conditions as that business’s permanent employees including the same opportunities for promotion and training. It is likely that this legislation will be repealed in its entirety and it is difficult to see how doing so would have a detrimental effect on trade and investment with the EU.

…UK Data Protection will have to withstand EU scrutiny
General data protection principles enshrining the rights of the data subject and the duties of the data holder will remain unchanged. However, new rules governing the transfer of data to non-EEU countries may be required. The EEU countries are the 27 member states of the EU plus Iceland, Liechtenstein and Norway. The UK, not being a member of the EEU, will have to ensure that adequate measures are in place to protect data flowing from the UK to these countries. The existing data protection regime is currently being scrutinised by the European Commission which will determine whether the current UK regime offers sufficient protection.

…Some EU law in the pipeline will still be adopted by the UK
So, those are some areas where the UK will almost certainly diverge from the EU in the realm of labour law. There are, however, other areas where the Government has indicated it would adopt all or parts of certain EU directives which are in the pipeline which are discussed below.

…Protection for UK whistle-blowers set to improve
A new Directive, due to come into force in the EU in December 2021 would require the employer to inform the whistle-blower of any steps it has taken or proposes to take as a result of the information provided by the whistle-blower. In addition, equivalent protection to that afforded to employees who blow the whistle would be extended to self-employed freelancers and shareholders.

…Transparent and Predictable Working Conditions Directive will require further action to prevent the abuse of zero hours contracts
This Directive is due to come onto the EU statute book in April 2022. The UK is already ahead in this area as not only employees but also workers are entitled to written terms and conditions of employment setting out such basic information as the names of the parties, salary and other benefits, working hours, overtime arrangements, holidays etc. However, the Directive would also require a more “stable” and “predictable” contract which would, for example, prevent the abuse of zero hours contracts, require the employer to give reasonable notice of any shift change and to pay compensation to the employee where short notice has been given of a shift cancellation. It would also ban long probationary periods. Although in reality, in this country every employee could be said to be on a two-year probationary period in the sense that an unfair dismissal claim cannot be brought by anyone with less than that length of service.

…Work-Life Balance for Parents and Carers Directive will shore up working parent’s rights
This Directive was passed by the European Parliament on 1 August 2019 and must be adopted by all member states by 1 August 2022. In many ways, UK legislation already provides several of the rights enshrined in the Directive such as paid paternity leave, shared parental leave and rights for carers. UK employees are also entitled in certain defined circumstances to request flexible working, to take time off for family emergencies and to take unpaid parental leave to care for a child under the age of 18. Carers are also protected from discrimination or harassment as a result of their caring responsibilities.
Therefore, only a few changes are envisaged in the area of family-friendly policies although one such change might be the removal of the length of service requirement for an employee wishing to take paternity leave. Currently, the employee must have completed 26 weeks of continuous service before he is entitled to such leave.

… Will the UK be truly free from EU Employment Law?
Overall, it is likely that the Government will proceed with caution in introducing changes in employment law. Although the freedom for the UK to make its own laws was argued to be one of the main advantages of Brexit, nevertheless the UK will need to remain a viable trading partner with the EU. In addition, measures to defeat COVID19 will dominate the legislative agenda for the foreseeable future.FG Solicitors is an expert in helping its clients navigate the everchanging employment law and people management landscape to provide greater certainty over their financial and operational outcomes. Please watch this space for further updates from the employment specialists at FG Solicitors. If you require further advice about the above, please feel free to call us on 0808 172 9322 for a no obligation discussion.
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This update is for general guidance only and advice should be taken in relation to a particular set of circumstances.

  

Legal risk management in uncertain times

“While the impact of the current pandemic has left many businesses feeling uncertain about their future, from an operational and financial perspective it is certain that there is more opportunity for legal risk.”

From an operational and financial perspective, risk and uncertainty are not the same thing. Uncertainty arises when we are unsure about future outcomes usually due to a lack of knowledge or insight. Businesses that operate in a climate of uncertainty are likely to find over time that operational and financial objectives will be severely impacted and the outcomes may be unpredictable. On the other hand, risk focuses on the good or bad outcomes of our actions or inactivity which means that the outcomes can be managed and controlled to achieve better results.

Replace uncertainty with risk management

There are many different types of threats which could damage your business from financial uncertainty created by the economic outlook, an IT security attack which could take the business down for days to an expensive and time consuming legal challenge by a client who is unhappy with a product or service or an employment tribunal claim by an employee who alleges they have been harassed by a colleague.

Awareness of the threats means a business is in a stronger position to respond to the negative impact the business may experience.

“There are five basic elements to a successful risk management process that will help develop a plan to mitigate against your biggest threats.”

In very simple terms, risk management is the process of:

Build resilience

Instead of having no idea whether your business objectives can be achieved or what might get in the way of their delivery, a systematic approach to risk management based on these five simple steps forces you to face up to the risks and enables you to make the right decision to make your business more resilient.

Prioritise legal risk

Any business that has not come out the right side of a legal dispute will want to avoid being in such a situation in the future. Therefore, any risk management plan should incorporate a section which considers legal risk.

“The nature of the business and the industry sector will determine those areas that create the most threat.”

Common legal risks are likely to arise from factors such as contractual relationships with third parties, changes in the law, technology and data security, intellectual property, competitors and employees.

Have you for example examined the potential legal risks that are involved in employing people in your business or are you prepared to leave things to chance? A workplace that is reliant upon out of date contracts of employment, has no clear policies and procedures and is not operating in line with current employment laws and regulations is likely to be faced with outcomes that are unpredictable when it comes to legal disputes in the employment tribunal.

However, the five-step approach to risk management will assist in identifying and managing legal risks with the aim of preventing these risks becoming costly legal liabilities and creating more certainty about operational and financial outcomes. This will mean having legally compliant contracts of employment and up to date policies and procedures underpinned by appropriate legal compliance training for managers and supervisors.

A more confident future

Overall, businesses that prefer to operate in a culture where it is unsure about what happens next will have an uncertain future. Those who want a more confident future will have a strong risk management culture that recognises the need to identify and manage legal risks.

FG Solicitors are experts in helping its clients safeguard their businesses from legal risks, so they have greater certainty over their financial and operational outcomes.

If you require further guidance on how to manage legal risks within your business, please feel free to call us on 0808 172 9322 for a no obligation discussion.

For further details about the legal services and assistance we provide to businesses, please click here.

 This publication is for general guidance only. Advice should be taken in relation to a particular set of circumstances.

THE TOP 7 TUPE RISK AREAS

Does TUPE apply? 

At the outset, the business should determine whether TUPE applies. Wherever possible this should be agreed with the other party before the business transfers or the contract moves to a different service provider. The risk arises when the parties cannot agree.

Failing to comply with consultation obligations

This is an issue where there are 10 or more employees in a non-unionised business/organisation, where there are no existing employee representatives who have been elected for the purpose of the transfer. In such instances the business/ organisation must arrange for the election of employee representatives – the regulations governing these elections, as well as the functions and responsibilities of those representatives are detailed, and financial penalties will be incurred if the regulations are breached. Both the transferor and the transferee may be liable for these penalties.

Identifying those who are to transfer and those who are to remain

This is an exercise that should be dealt with at an early stage of the planning process and should be able to withstand close scrutiny. Historically, this is an area that has given rise to a substantial raft of case law especially in specific problem areas, for example, where there are employees absent from the business due to long-term sick leave or furlough leave prior to the transfer taking place.

Dealing with the restructuring of the workforce post transfer

This is a risk area for both the transferor and the transferee. Restructuring which results in changes in headcount needs to be carefully handled in the light of the added protections offered by the TUPE regulations.

Ensuring pension rights are established

This is a particular issue for the transferee, especially when on-boarding staff who have previously enjoyed generous pension schemes with the transferor – a key example of this being on the award of a contract by a public sector organisation.

Changing terms and conditions post transfer

Identifying when change is permitted and the mechanism for change in terms and conditions of employment.

Relocating staff post transfer

This is now allowed but there are processes to be followed which can prove costly if breached.

FG Solicitors are experts in all areas of Employment Law and HR. Feel free to call us on 0808 1729 322 for a no obligation discussions.

This information is for general guidance only and does not constitute definite advice.

Getting back to work

Work Safety

Announcing the extension of the furlough scheme will have provided many businesses and employees with some comfort and further financial breathing space during these challenging times. The scheme will remain in place until 31 October 2020, which is perhaps longer than initially anticipated. The scheme’s current format will however change from August with employers being required to share the cost of furloughed staff with the government.

By the end of May more detail about the post-July changes will be published. Although the aim of the changes will be to provide employers with greater flexibility to get furloughed employees back to work on a part-time basis, without the full detail of the changes, the real benefit cannot be assessed. So there will be some nervousness until the employer’s contribution has been published.

Most employers supported by the furlough scheme will sensibly defer any definite decisions about the future shape of the workforce and their return to work plans until further information is available. In the meantime, there are certain key questions that need to be answered.

Can the business return to the way it was in the short and long-term from both a financial and operational perspective and if so, how quickly can this be achieved, if at all?

Even when driven by financial necessity, furloughing employees will have been a difficult decision but in many cases it would have been implemented overnight. Bringing the operation back to life and having sufficient revenue streams to support this move is likely to be a more complex process; a new strategy may be required. Where people are at the core of the operation, workforce planning will be an critical part of developing a new strategy, which may inevitably involve restructuring and redundancies. Changes to contractual terms and conditions of employment may also be necessary. In either case, careful planning will ensure that all legal obligations, including complying with any consultation requirements are satisfied to minimise the risk of claims in the employment tribunal.

How will employees’ expectations be managed?

Until the recent announcement, the focus has been on the furlough scheme ending at the end of June. In contrast to the suggestion furlough is addictive, the majority of those furloughed will have been focusing on returning to work on 1 July, which is probably what individuals believed they were signing up to under their furlough agreements. Financial reasons will be at the heart of the decision for any business to utilise the scheme for as long as possible. In making this decision, employers need to be able to address employees’ current expectations, not only in terms of a continued requirement to remain at home but also the financial impact that it may have on them personally.  A clearly communicated rationale and a keeping in touch plan will be essential to retain the engagement of those on long-term furlough, if those employees are key to future business success once the recovery period is underway.

The consequence of long-term furlough means that employees are being asked to agree to a continued variation of their contracts of employment. If furlough is to be extended it will be important to establish if current furlough agreements can be relied upon or whether new agreements will need to be issued to avoid breach of contract and wage claims.

Are there any health considerations that need to be addressed in the return to work plan?

There is still no certainty about the curtailment of the virus and the health risks are still present. Any return to work plan must be supported by a thorough health risk assessment. The assessment needs to start from an employee’s home and include their journey to and from work. It is difficult to control who individuals come into contact with when away from work. Control measures will need to be implemented, including reiterating the importance of following the government’s social distancing measures and good hygiene. Further hard work will be needed once the employee is back at work to manage any health risks, with adequate controls being implemented. Adhering to government and the Health and Safety Executive guidance should be non-negotiable from the perspective of both the business and all employees when it comes to protecting individual well-being. Vigilance and flexibility in relation to control measures will be important to safeguard health, if the level of risk increases. The workplace is likely to feel and may look very different when employees return. It is important that clear guidance and training is provided on how to work safely and protect health.

Mental health should also be a factor that is considered as part of any risk assessment. This factor is multi-faceted. Some employees may need reassurance as they have concerns about their personal safety. Others may struggle to adapt when returning, particularly if the work regime feels unfamiliar. Deferring a return to work or making a request that homeworking is undertaken, may leave individuals feeling left behind and isolated. Employers have a legal duty to tackle work-related mental health issues; risks need to be assessed and controlled.

How will a phased return to work be managed?

Roles and skills will have been identified as necessary to support the initial recovery phase, while less business critical roles are likely to be kept under review as progress is made. Resuming some level of operation will be perceived as a positive step but there are potential legal risks that need to be addressed.

A phased return means that choices will have to be made about who returns, and from August whether this is on a full-time or part-time basis (if home working cannot continue), and who stays at home furloughed. Employment law still applies irrespective. To avoid any legal challenge, employers need to be transparent about the selection criteria adopted to bring people back to work while others remain at home. It is essential that this process is documented, and the audit trail must be capable of demonstrating that selection is fair, based legitimate business reasons and is not discriminatory.

Is business ready to be scrutinised?

The government’s focus is now on a transition period, with employers starting to take back responsibility for the cost of their workforce. In the absence of further detail, it is unclear if employers will be required to justify decisions made to retain employees on furlough until the end of October. Employers may be required to justify their decisions made about keeping employees on furlough throughout the extended period. The furlough scheme is not there to avoid dealing with problem employees. At some point concerns will have to be addressed.

The furlough scheme extension will continue to protect many jobs as the economy recovers. While waiting to learn more about the changes to the scheme from August, from an employment law and people management perspective employers should now start to sketch out the future for its operations and the workforce.

FG Solicitors are experts in all areas of Employment Law and HR, and we can slide your business through the business recover stages. Feel free to call us on 0808 1729 322 for a no obligation discussions.

This publication is for general guidance only. Advice should be taken in relation to a particular set of circumstances.

 

 

Out of date employee contracts and policies, are you at risk?

Outdated ContractsThe last thing any business owner wants is a lawsuit. If you’re careful it’s an avoidable business risk, unless you have outdated employee contracts and policies. Then you may be risking one of your employees taking action against your company.

Employment law is continually changing. To protect your company you need to ensure your employee contracts and policies are updated and maintained on a regular basis. At FG Solicitors we specialise in Employment Law and proactively work with our clients to ensure their documents are working for them.

If you want to find out more or get in contact please visit http://www.fgsolicitors.co.uk/hr-review/

GDPR is Fast Approaching!

The clock is undoubtedly ticking for employers as we edge ever closer to 25th May 2018 when the General Data Protection Regulation (“GDPR”) becomes law. Naturally, there will be those organisations that fail to comply with their obligations and make headlines if only through fines or strengthening a disgruntled employee’s ability to bring successful claims. But enough scaremongering!

The question on most employer’s lips is, what do we need to do to get ready? In broad summary there are 5 key steps:

  • Data mapping
  • A review of the key employment documents that touch and concern data protection
  • Training staff on policies and what to do if there is a breach
  • Dealing with Data Subject Access requests
  • Appointing a responsible person with overall knowledge and gatekeeping responsibility.

The starting point for employers is what is now referred to as Data Mapping which put simply is to look at what data is held and processed, where it comes from and for what purpose it is processed. This will enable employers to identify their legal justification for processing it.

Historically a significant proportion of employers have not really given much thought to the justification for holding the employee data that is held in their organisation preferring to rely on a clause in their standard employment contract requiring employees to give their consent to the employer using their data in whatever way they needed to. Once the GDPR is in force placing reliance on employee consent may not only prove ineffective it may also result in an onerous administrative burden for employers.

Data mapping is a worthwhile exercise for employers of any size and will lead to those employers identifying and adopting the most appropriate GDPR compliant reasons for justifying data processing within their own organisations.

The next step for employers is to review existing documents, contracts of employment, policies and procedures in the staff handbook and staff privacy notice in particular. This is to ensure that they are all GDPR compliant. It is also important to ensure that any contracts in place with third party service providers, for example, payroll services providers are also GDPR compliant.

Employers need to ensure that their employees receive training in relation to what their obligations are such as record keeping, retention of data and reporting obligations in relation to the breach of the GDPR.

The right of employees to make data subject access requests is nothing new but it is likely under the new regime that employers will see an increase in such requests. The GDPR has removed the right for employers to charge a fee save in exceptional circumstances and has also shortened the time limit within which an employer must respond to such requests from forty days currently to save in exceptional circumstances one month.

Finally in this summary, the responsible person or Data Protection Officer (“DPO”). Not all employers are required to have one but the process of deciding whether to put one in place is an important exercise for all employers to go through. If an employer chooses to have a DPO time spent in selecting the right individual will be time well spent.

Employers are well advised to get the ball rolling, there is very little time left to define and implement an effective GDPR compliant infrastructure even if the process has already started.

The Team at FG Solicitors can help you with tailored best practice HR and legal audit solutions, beginning with evaluating your current data protection framework enabling you to confidently establish a GDPR compliance roadmap. We will work with you to identify remedial action tailored to your method of operation, thus ensuring a best fit data compliance framework. Regardless of the size of your organisation, we can tailor our GDPR support services to your specific needs.

AUDIT! REMEDIATION! IMPLEMENTATION! TRAINING!

Contact us for a no obligation informal discussion.

It wasn’t me Guv, honest!

SUMMARY: A vexed recurring question from employers, particularly those seeking to recruit new employees is “Can I ask the candidate about any previous criminal convictions?” The natural next question is, “What can I do if a candidate says they have a clean criminal record, but I find out this is untrue?” We address these questions below:

background-check-document-security-criminal

SPENT CONVICTIONS

The current general principle is that ex-offenders should be rehabilitated into society. The Rehabilitation of Offenders Act 1974 facilitates this by allowing historic convictions to become “spent” and non-disclosable to employers if an ex-offender has not reoffended for a specified period of time following their original conviction.

The length of the rehabilitation period depends on the sentence imposed and NOT the nature of the offence committed. However, if a custodial sentence of over four years has been imposed, the relevant offence will always be disclosable.
However, in certain situations, the general “spent” principle does not apply. Roles covered by this exception fall into the following five broad categories:

1. Professions (e.g. medicine, law and accountancy);
2. Those employed to uphold the law;
3. Certain regulated professions (e.g. financial services);
4. Those who work with children, vulnerable adults and health services; and
5. Those whose work could mean they could pose a risk to national security.

In these cases, all convictions including “spent” convictions must be disclosed as part of assessing an applicant’s suitability for the role. In addition, those applying for such roles would qualify for checking under the Disclosure and Baring Services (“DBS”).

ASKING ABOUT PREVIOUS CONVICTIONS

Even if the role is not covered by one of the exceptions listed above, as part of the recruitment process, the potential employer can still ask the candidate to voluntarily disclose information about their criminal record history.

However, the employer should be aware that the candidate is under no obligation to disclose “spent” convictions – if convictions are “spent,” the candidate can hold themselves out as having a “clean” criminal record.

Also, unless the role is covered by one of the exceptions listed above, there are limits as to whether the employer can request a formal DBS check. To overcome this limitation, employers had adopted a practice of requiring potential employees to make a Data Subject Access Request covering their criminal records and requiring disclosure of this, but this practice is now unlawful.

WHAT IF A CANDIDATE DISCLOSES A CURRENT CONVICTION?

If a role is not covered by one of the exceptions listed above and there is no industry specific guidance, employers should exercise their independent judgement about employing a candidate with a current conviction.

Employers should not have a blanket ban on employing offenders, but should instead perform a risk assessment relevant to the sector, position and situation considering:

  1. Whether the conviction is relevant to the role in question;
  2. The seriousness of the offence;
  3. The length of time since the offence occurred;
  4. Whether there is a pattern of offending or other relevant matters;
  5. Whether the applicant’s circumstances have changed since the offending; and
  6. The circumstances surrounding the offence and any explanation offered by the applicant.

WHAT IF A CANDIDATE FAILS TO DISCLOSE A CURRENT CONVICTION?

Unless the role in question is covered by one of the exceptions (when failure to disclose all current and “spent” convictions when asked will be a valid reason to withhold employment, or to dismiss if the applicant has taken up employment), a potential applicant cannot be prejudiced (i.e. not hired) for failing to disclose a “spent” conviction when asked about their criminal records history.

In addition, there is no obligation on a current employee to disclose a “spent” conviction when asked (even if there is a contractual requirement to disclose convictions), and dismissing an employee in these circumstance could give rise to an unfair dismissal claim (providing the employee has two years’ service).

However, if an applicant lies about the existence of a current conviction, and this comes to light in due course, an employer could attempt to terminate their employment for breach of trust and confidence.

If the lie becomes apparent shortly after the employee takes up employment, this trust and confidence argument is likely to be a safe one. However, if the employee has accrued a significant length of service, particularly if they have been employed for over two years, it may be outside the range of reasonable responses to dismiss in circumstances where the employee has demonstrated they are trustworthy and competent in the role.

CONTINUING OBLIGATION TO DISCLOSE 

Asking about a person’s criminal record or obtaining a DBS Certificate has the limitation that it is only accurate at the time the disclosure is made. If the nature of the role requires continuing disclosure, it is sensible for employers to include a contractual requirement for ongoing disclosure. This will not automatically make a dismissal fair if an employee commits a criminal offence and conceals it, but it may assist an employer to demonstrate that it acted reasonably if it later finds out that an employee failed to disclose a conviction, which calls into question their suitability for continued employment.

If you would like more advice about any of the issues raised in this article, please contact a member of our team on (01604) 871143.

Zero Tolerance on Sexual Harassment?

size0Last year was a year of surprising developments in the field of employment law and it has also certainly been an encouraging year for women in the arena of work and working relationships with equal pay and sexual harassment setting the momentum for legal decisions and media frenzy.

From Prime Ministers to activists to law enforcement within the civil and criminal court system, a seismic change appears to be developing in the war against sex discrimination. Laws to protect, for the most part, women, from unlawful discrimination in the workplace are not new, the Equal Pay Act 1970 and the Sex Discrimination Act 1975 have been in place for over four decades.

This, therefore, begs the question, to what should we attribute this clear increase in the number of claims being brought against individuals, employers and even members of Parliament? Certainly the number of global high profile allegations against even the current United States President and Harvey Weinstein the movie mogul has arguably given women in the workplace the courage to come forward casting off the shackle of fear that such a stance could be career-defining for all the wrong reasons, or that the practice of sexual harassment within their particular workplace is so ingrained as to be institutional.

Closer to home, the abolition of Employment Tribunal fees has led to a 66% increase in the number of claims made in Employment Tribunals in the period of October 2017 to December 2017. No doubt some of these will be complaints linked to some form of sex discrimination.

Employers can either be directly liable for proven cases of sex discrimination or have liability imposed as a result of the actions of their employees where the employer is unable to demonstrate that they took all reasonable steps to prevent the conduct of the errant employee and there was nothing more they could have done. Given the current climate and appetite for seeking redress for unsolicited and unwanted conduct of a sexual nature, employers of any size are well advised to review their policies and procedures to ensure not only that there is an effective infrastructure in place to deal with allegations of this nature, but also that the issue of educating the workforce to have an appreciation as to the types of conduct that may be perceived by female and also male employees as undermining their dignity at work.

There should be regular periodic reviews of all relevant policies and procedures to ensure that there is sufficient knowledge of them in the workplace and that they remain effective. New employees should have dignity at work and awareness policies enshrined within onboarding and induction training to ensure that a full appreciation of the types of prohibited behaviour is gained. Employers must balance the right of an aggrieved employee to make allegations and to have the confidence that they will be effectively dealt with, against the right of the accused to also be confident that the process that follows will have the required level of investigative thoroughness to withstand objective scrutiny. In so doing a culture that promoted dignity at work will be woven into the fabric of working practices.

Gather, Distribute, Process, Retain No Info!

3MonkeysIn terms of legal opinion on which others may place reliance it is often advisable to do away with the needle of innuendo and pick up the club of statement. In line with that adopted position, you are invited to consider the implications of the impending arrival of the General Data Protection Regulations (“GDPR”).

As the regulations have their origins in EU law, an immediate question is will they survive Brexit? The short answer is that even if the regulations do not survive intact post Brexit, the Government has confirmed that the UK will implement the GDPR when it comes into effect on 25 May 2018 because the UK will still be a member of the EU at that time.

The GDPR heralds the biggest shake up in privacy laws in 20 years and will have a seismic impact on the human resource data processing undertaken by employers and employment related entities.

There will be some fundamental changes to the current law and it is suggested that organisations need to be aware of those changes and should be actively developing a strategy for compliance ahead of the changes coming into effect in May 2018. This is especially because the cost for GDPR non-compliance has risen dramatically when compared to non-compliance with current data protection legislation, as the new fines will be based on a percentage of total annual turnover of a business in the previous financial year. It will become easier for individuals to claim compensation and group actions will be more likely.

THE KEY CHANGES…

As a minimum, the key changes for staff engagement purposes include:

Consent: No longer will it be sufficient to include in Contracts of Employment a blanket clause stating an employee is deemed to give consent to the lawful processing of their data. Instead, organisations will be obliged to demonstrate that consent has been explicitly given for each processing purpose of the data in question. Furthermore, the organisation will need to demonstrate the consent was freely given (potentially difficult in the master/servant relationship which is employment) and that the consent is “informed.” Also, the organisation will need to implement a mechanism for the withdrawal of such consent at any time.

Subject Access Requests: The information to which data subjects will be entitled under the GDPR is more extensive. The time for providing that information is reduced from 40 days to one month and there will be no longer be a right for organisations to charge a fee to provide this data.

Right to Erasure: Also known as “the right to be forgotten,” this is a new right where individuals can request that their personal data is permanently deleted in certain circumstances. This will cause organisations particular difficulties where personal files are held both centrally and locally (for example, by a line manager).

Right to Restriction: There are instances when organisations are obliged to restrict processing; this includes employee challenges to the accuracy of personal data. This could result in certain management processes being stalled.

Breach Notifications: Unless the breach is unlikely to result in a risk to the individuals concerned, organisations’ data processers will be obliged to notify the ICO of all data breaches without undue delay and, where feasible, within 72 hours of the breach.

DO WE NEED TO DO ANYTHING YET??

YES! 

Organisations could be forgiven for thinking that, as the GDPR implementation date (25 May 2018) is still the best part of 12 months away, and with Brexit looming, the matter can be left for now. But compliance with this legislation will require a good deal of planning and remapping of existing processes. The immediate steps for any organisation include:

  1. A comprehensive audit of existing systems and processes;
  2. Deciding whether additional personnel should be recruited to take on specific roles and responsibilities;
  3. Designing systems that will assist with GDPR compliance (including breach notification compliance);
  4. Identifying appropriate training for staff – for example, general awareness training for staff with more specific training for those with greater compliance responsibilities (including the IT Department and HR managers); and
  5. Reviewing and upgrading current Contracts of Employment and policies to manage risk.

We can undertake your audit and assist you with preparation for GDPR implementation. For a non-obligation consultation, please call a member of our team on 01604 871143 or email us on info@fgsolicitors.co.uk

5 minutes with Floyd Graham

SJB18326

1)   How has employment law changed over the last 5 years?

Employment law has changed in emphasis. There appears to be a focus on clarifying and simplifying legislation, whilst at the same time striving to make it easier for contentious matters to be resolved without the need for following a full legal process through to resolution by the Courts. With the right support, employers can now create the right blend of performance optimisation and risk management to suit their organisations.

2) How many employees do businesses need to have before they have an employment law strategy?

Even employers with only one employee have employment law obligations and mistakes can be costly! The strategy should focus on legal compliance first, followed closely by achieving enough lawful flexibility to manage the business profitably and efficiently.

3) What advice would you give our readers who need to reduce their headcount over the next 6 – 12 months?

Plan properly to ensure that you do not end up keeping the employees you should be losing and losing the employees that you need to keep! A bit of effort in the planning stage, and the right guidance will ensure that your selection decisions work for your business and that your process will withstand any objective scrutiny. It is important that exiting employees, and those being retained, accept that fair processes have been adopted as this is a crucial part of managing risk.

4) What advice would you give our readers that are planning to increase head count over the next 12 – 18 months? 

Firstly, evaluate and streamline your operational infrastructure to ensure that the increase in headcount adds value and does not just fill a vacancy that has arisen. Next ensure that your recruitment and selection process is capable of selecting the right candidates for the role not just in terms of competence, but also in terms of team fit. Miss-hires are costly! Lastly, spend some time getting the “on boarding” process right, after all your new recruit is not the only one who needs to make a good impression!

5) Finally, one of our readers has 35 employees. They have a member of staff who has been with them for 10 years, who has made significant career progression and is now Sales Director. However, the Managing Director has noticed a “different” person in the last 12 months and believes it would be in the best interest of the company for the Sales Director to leave. How does the Managing Director achieve this as quickly, cost effectively and amicably as possible?

As an advisor, I would be focused on establishing the reason for the change, after all for 9 of those 10 years he has been a good employee and has an invaluable historic working knowledge of the business. The reason could be linked to domestic circumstances, ill-health or becoming disillusioned with the work environment. An accurate assessment of the reason will greatly assist the decision on which “legal tools” are chosen to remove him. Commerciality and risk are the twin stools on which most removal strategies are based.

The law now permits the option of having a protected discussion with the employee to explain the Company’s position and to allow the employee to state his. If the differences are irreconcilable, a protected discussion is generally quicker than a formal process, but can be a more costly option. It is likely that a dismissal on performance grounds is likely to be contentious unless supported by significant evidence. If this option is chosen, great emphasis needs to be placed not only on the reason but also the process, which should be vetted beforehand to ensure that it is legally compliant. This is generally a longer route. Lastly, it may be less contentious and faster to restructure that part of the operation for which this employee is responsible and remove him on this ground. Again, if speed is of the essence, this option may be the most suitable. I note that the employee is a Sales Director and therefore prior to dismissing him, consideration should be given to safeguarding the business against post dismissal competition from him and protecting confidential information.