There has been a dramatic rise in potential GDPR breaches since its introduction in May 2018. The Information Commissioner’s Office has seen a massive increase of 160% between 25 May 2018 and 3 July 2018. According to the law firm EMW, the rise is due to public awareness of data protection. Knowledge is power and those willing to fully use GDPR will create a huge workload for business.
Emailing on commute should count as work, says research
A recent study found that 54% of passengers on a train use the onboard WIFI. Many of these passengers describe the journey as “transition time” between family and work, while others called it “dead time”. The study by the University of West England, suggests that sending emails while commuting adds to the total working hours. Some researchers are calling for the journey to be part of the working day. However, the introduction of this would be difficult to calculate and could call for more surveillance from employers.
Private Prosecutions
When individuals or companies have suffered financial loss because of dishonesty, and they seek recompense, they often head for the civil courts. Sometimes there may be elements of the fraud that the injured party thinks should be the subject of a prosecution, yet the authorities may be reluctant to pursue. In suitable cases, a private prosecution should be considered.
The successful prosecutor in the Crown Court may be able to recover a significant proportion of its costs from central funds. Appropriately advised and conducted, a private prosecution can have limited downsides.
Andrew Manners of MLR instructing Charles Bott QC and Richard Furlong of Carmelite Chambers (London) acted in the successful private prosecution this year, of 2 individuals for fraud on a subsidiary of a multi-national group of companies.
Sleeping on the Job
Until recently, some sleep-in workers were entitled to be paid National Minimum Wage (NMW) for every hour of their shift, including hours when they sleep and do not work. However, the a recent case, has overturned the position. It decided that only when workers are awake can they claim NMW.
Just 6% of UK Work is Traditional 9-5
Despite, the new 9-5 musical arriving in the West End, a recent survey has revealed that only 6% of people in the UK, work traditional 9am – 5pm hours, with 66% of them saying they would like to start earlier and finish earlier. This survey clearly shows that the modern flexible working has become the norm.
HMRC Sleeping on the Job
HMRC accused of failing to clarify sleep in payment rules HMRC have been accused of confusing the latest stand point on sleep in payments to carers. HMRC recently sent a letter to social care providers who were signed up to social care compliance scheme (SCCS). The letter sought to clarify the future of SCCS obligations following a recent Court of Appeal decision.
The case declared it “appropriate to continue to operate the SCCS” but informed employers to wait for government guidance on minimum wage calculations.
56% of workers think they are being monitored at work
New research has revealed that over half of workers believe they are being watched by big brother, aka, their employer. Many believe their emails, internet history and phone calls are being monitored. As many as 23%, even go as far as to think their employers have location tracking devices or facial recognition software in use. The Trade Union Congress who released this report, argue that workers feel powerless and their lack of GDPR knowledge makes it difficult for them to challenge the notion. The report states employers have exceeded their boundaries and calls for legal duties to be placed on them to consult their workforce and justify the use of any surveillance.
Review of Modern Slavery Act 2015
This summer saw the first step in reviewing the Modern Slavery Act 2015 (MSA), after a damning report estimated the annual UK economic and social cost of slavery to be £4.3billion.
The aim of the review is to report on the operation and effectiveness of the MSA, along with potential improvements. In particular, the report will examine the meaning of exploitation, the statutory defence, independent child trafficking advocates and several other sections of the MSA. The report is due to be presented to the Home Secretary by March 2019 and later presented to Parliament
Report on Gender Pay Gap Reporting
On 2 August 2018, the House of Commons Business Energy and Industrial Strategy (BEIS) committee published a report on gender pay gap reporting, this is the first report into an inquiry launched back in March 2018.
The report shows that while gender pay gap average is at 18% nationally, in some organisations it is as high as 40%. Several recommendations were made to reduce the gap such as reporting to include a narrative explanation for pay disparity.
Whether these recommendations are in fact implemented by the government is one thing, but, there is no denying, the calls are growing rapidly for the gap to close.
Supreme Court finds no discrimination in ‘Gay Cake’ case
The recent case of Lee v Ashers Baking Company Ltd decided that there was no discrimination established when a bakery refused to bake a cake for a customer who wanted the slogan ‘support gay marriage’ to be printed on the cake.
It was emphasised that the court came to this decision because of the message to be printed on the cake and not because of the sexual orientation of the customer. Despite this decision, it’s worth noting that this decision doesn’t mean that businesses can refuse to provide their services to gay people or that employers are free to discriminate them.
Inevitably, aspects of Human Rights come to mind as a result of this decision, and clearly there will be a mix of opinions on the decision of this outcome.
Update on employment tribunal fees including the refund scheme
The Lord Chancellor has provided an update on employment tribunal fees and the refund scheme fees to the House of Commons Justice Committee. The update includes:
- The government has sought legal advice on the way courts and tribunals are funded;
- Regarding refunds, large numbers of potentially eligible people have apparently failed to apply since 15 November 2017 – when the refund scheme was rolled out in full. The Ministry of Justice is writing to affected people in order to raise awareness; and
- The government incurred costs of approximately £305,000 defending the Unison case and it also has to pay Unison’s costs in those proceedings.
Tesco to pilot new employment related technology
Tesco is set to pilot new technology called the “Oracle Fusion platform” which will aim to improve the flexibility and productivity of its workers. The technology will also provide Tesco workers with a scheduling system to enable them to quickly search for overtime opportunities and swap their shifts. It will also allow workers to rearrange their hours or holiday requests when they are on the move or outside the country.
The right to be forgotten for convictions will depend on seriousness of offence and sentence imposed
In a recent case, a court had to rule on two “right to be forgotten” claims, only one of which it upheld. In these claims, the court had to decide whether an internet search engine operator should be required to de-list links in its search results to articles about the spent convictions of two businessmen.
The same judge heard other claims of a similar nature, and in one of these claims, two businessmen applied for orders requiring Google to de-list information about their previous criminal convictions from its search results. The court decided that a defendant convicted of a less serious crime was entitled to the right to be forgotten and delisted from an internet search. However, a more serious offence did not attract the same rights.
Acas publishes new GDPR guidance
Acas has published new guidance on the General Data Protection Regulations and what it will mean for employers. The guidance consists of a series of questions which covers key issues including who the GDPR applies to, what “personal data” is and how employers can comply with the regulation.
The guidance also helpfully refers to the 12-step checklist published by the Information Commissioner’s Office and advises employers to contact Acas using its helpline if they have any questions about the guidance.
Click here to see the guidance.
EHRC publishes updated handbook on the Equality Act 2010
The Equality and Human Rights Commission (EHRC) has published an updated version of its handbook regarding the Equality Act 2010. This is an essential tool to understanding discrimination in the workplace.
Click here to see the handbook.
Workers now have a right to an itemised pay statement
A recent change in legislation will provide that all “workers” have a right to an itemised pay statement and to enforce that right at an employment tribunal.
The Order comes into force on 6 April 2019 and will assist the government’s commitment to ensure employers provide itemised payslips to all workers, and not just employees. However, it will not apply to wages or salary paid in respect of a period of work before this date.
EHRC investigations into gender pay gap reporting failures began in June 2018
The Equality and Human Rights Commission (EHRC) began its investigations into employers who failed to comply with their gender pay gap (GPG) reporting obligations in June. Approximately 1,500 companies missed the deadline and were provided with 28 days from 9 April to comply or face further action. The EHRC have stated that those employers who do not report their data within 28 days of receiving a notification from the EHRC will face further action, which could include written agreements, unlawful notices and unlimited fines. The EHRC could name and shame employers that reach the investigation stage by uploading the results of investigations online which will be available to members of the public and the media.
More than 400 organisations have since either reported their data or confirmed that they do not come under the regulations. Those that have not complied will be investigated to ascertain if they have committed an unlawful act and if so may face a fine.
Contractual notice only starts when the employee knows they are being dismissed
The Supreme Court has recently decided that in cases of dismissal on notice by post (where there is no contractual provision governing when notice takes effect) the contractual notice only starts to run when the letter by which it is communicated comes to the attention of the employee and they have either read it or had a reasonable opportunity of doing so. It was decided that that there is a term implied in all employment contracts that written notice only applies when it is read (if the contract does not spell out something different)
Giving notice of dismissal in person, if possible, or at least verbally, is always the clearer and safer option, which should then be followed up with a letter and/or email. Finally, always ensure that comprehensive records are kept of the date and time of any such conversation and exactly what was said.
Employers failing to pay national minimum wage
It has been revealed that 239 employers have underpaid 22,400 workers in the UK by £1.44 million. The government is set to spend £26.3 million in relation to funding for minimum wage enforcement in 2018-2019.
If an employer has been underpaying its employees, they must repay arrears of wages to the employees in question at the current minimum wage rate. The employers will also be subject to fines of up to 200% of arrears (which is capped at £20,000 per worker). As a result, fines of £1.97m have been issued.
Reasons for failure to meet minimum wage requirements include:
- Taking costs for uniforms out of wages
- Underpaying apprentices
- Failure to pay travel time
- Misusing the accommodation offset
- Using the wrong time periods to calculate pay
Women on boards
A recent report by BEIS and the Government Equalities Offices has produced a press release considering the progress of the FTSE 350 companies in reaching the target of at least 33% of women holding board positions by the end of 2020.
It is noted that the FTSE 100 companies are on track to achieving the target, however, the FTSE companies, although the number of women appointed to boards have increased to 25.5%, about 40% of future appointment will need to be women in order for them to reach the target of 33%.
