As of 1 April 2018, statutory maternity, paternity, adoption and shared parental pay is £145.18 a week (up from £140.98). 

From 6 April 2018, the weekly rate of statutory sick pay is £92.05 (up from £89.35).

From 17 January 2018, the system for obtaining a basic criminal records check in England and Wales has changed. The Disclosure and Barring Service (DBS) has launched a new a new online application form for a basic disclosure certificate.

 

It is anticipated that there will be faster turnaround times for certificates.

 

For the new website, which may be used by applicants living or working in England and Wales, see https://www.gov.uk/request-copy-criminal-record

The government has announced the following proposed increases to statutory benefit payments:

• Statutory maternity, paternity, adoption, shared parental pay and maternity allowance will all be £145.18 a week (up from £140.98).
• Statutory sick pay will be £95.05 a week (up from £89.35).

60% of businesses have said that they are not prepared for their obligations under the new regime for data protection set out in the EU General Data Protection Regulation (GDPR), which will come into force on 25 May 2018.

According to a report by software technology firm Senzing, three in five of organizations are not “GDPR ready”, with 39% of UK-based directors being unsure if they would be GDPR-compliant by the 25 May 2018.

The Employment Appeal Tribunal has recently considered whether compensatory rest has to be taken in one uninterrupted period or whether a series of short breaks can be aggregated to amount to the requisite time.

 

Under the Working Time Regulations (WTR) a worker is entitled to a 20 minute rest break if their daily working time exceeds six hours.

 

In this case Mr Crawford was unable to take a continuous rest break of 20 minutes at any time during a shift. He was permitted to take short breaks which together amounted to well in excess of 20 minutes over the course of a shift. However, he was always on call during these breaks.

 

Mr Crawford claimed that this arrangement did not comply with the WTR and the EAT agreed stating that the rest break must be in one continuous single period and not an amalgamation of shorter breaks.

The European Court of Human Rights has considered whether an employer’s decision to install hidden cameras to monitor suspected workplace theft by a number of supermarket cashiers violated the cashiers’ privacy rights under Article 8 of the European Convention on Human Rights (ECHR).

 

Background

Article 8(1) of the ECHR states that “everyone has a right to respect for his private and family life, his home and his correspondence”.

 

In this case, a supermarket cashier and her four colleagues worked as cashiers at a supermarket chain. In June 2009, the manager of the supermarket identified significant discrepancies between the stock levels and what was supposedly being sold in the store. In some months, the discrepancy was as much as €20,000. As part of an investigation, the supermarket installed surveillance cameras in the supermarket. The cameras aimed at possible customer thefts were visible. However, other cameras, aimed at recording possible employee thefts, were concealed. The concealed cameras filmed the area behind the cash desks. The supermarket did not inform its employees or its staff committee that the concealed cameras were in place.

 

Shortly after the video cameras were installed, the employee and her colleagues were caught on video stealing items, and helping co-workers and customers to steal items. The five employees admitted involvement in the thefts and were dismissed.

 

All five of the employees commenced unfair dismissal claims, and the dismissals were upheld by the Spanish employment tribunals and on appeal by the High Court. The Spanish courts accepted that, in the circumstances, the covert video surveillance had been lawfully obtained even though prior notice had not been given to the employees. The High Court found that the surveillance had been justified, since there had been reasonable suspicion of theft, appropriate to the legitimate aim pursued, necessary and proportionate.

 

ECtHR

The employees brought claims against Spain before the ECtHR, and complained that the use of footage taken from the covert video surveillance in the unfair dismissal proceedings had breached their right to privacy under Article 8 of the ECHR.

 

The ECtHR upheld the employees’ Article 8 claim, finding that the Spanish courts had failed to strike a fair balance between the rights involved.

 

Were the employees’ privacy rights infringed?

The court observed that covert video surveillance of an employee in their workplace must be considered a considerable intrusion into their private life, since an employee is contractually obliged to report for work at their workplace, and cannot avoid being filmed.

 

The court therefore had to examine whether the Spanish Courts had struck a fair balance between the employees’ right to respect for their private life and both their employer’s interest in the protection of its property rights, and the public interest in the proper administration of justice.

 

Weighing up the competing factors, the court noted that the covert surveillance was carried out in the context of an arguable suspicion of theft, which warranted an investigation. On the other hand, the covert video surveillance in this case was not targeted at particular individuals, but rather it filmed all the staff working on the supermarket’s cash register, over a period of weeks, without any time limit and during all working hours.

 

Consequently, the court did not consider that the surveillance had been justified. The court observed that the employer’s rights could have been safeguarded by other means, notably by informing the employees in advance of the installation of a video surveillance system.

 

Comment

In the UK, guidance published by the Information Commissioner’s Office states that it will be rare for covert monitoring of employees to be justified and that it should only be done in exceptional circumstances.

 

It is therefore advisable for employers to maintain a strict policy that covert video surveillance will only be carried out in highly exceptional circumstances where the employer reasonably believes that there is no less intrusive way of tackling the issue. Where covert monitoring is undertaken, it should be done for the shortest possible period and affect as few individuals as possible.

Twenty company directors from sixteen restaurant and takeaway businesses were recently issued disqualification orders, following investigations by the Insolvency Service. 18 directors were banned for being company directors or being involved in company management for six years each, whilst 2 directors were disqualified for seven years.

 

Employers are responsible for ensuring that their companies do not employ workers who do not have the right to work within the UK. The company must undertake, and prove that it has undertaken, checks on workers to establish their entitlement to work prior to recruitment. Following Home Office Immigration investigations, the companies were issued with penalty notices totalling £505,000 which remain unpaid. The Insolvency Service pursued civil disqualification rather than a criminal prosecution.

Mr King worked for The Sash Window Workshop Ltd (SWW) as a commission-only salesman for 13 years. He received no salary, and was never paid for any holidays or periods of sickness absence.

Mr King argued that he had not taken his full annual leave entitlement each year because it would have been unpaid.

An employment tribunal decided that Mr King was a worker under the Working Time Regulations. It awarded him holiday pay in respect of:

• Leave accrued in the final leave year but untaken at the date of termination.
• Leave requested and taken as unpaid leave in previous years, claimed as a series of unlawful deductions from wages.
• Leave accrued but untaken in previous years.

SWW appealed against the decision to award payment in respect of leave accrued but untaken in previous years (the third bullet point). The other points were no longer in dispute.

The Employment Appeal Tribunal upheld the appeal on the ground that Mr King had not been prevented by reasons beyond his control from taking annual leave.

Mr King appealed to the Court of Appeal who referred the matter to the ECJ.

Decision

The European Court of Justice upheld Mr King’s arguments. In their opinion, employers must provide adequate facilities for workers to take paid annual leave. If a worker has not taken some or all of their annual leave entitlement because their employer refuses to pay them for it, the worker is entitled to say that they have been prevented from exercising their right to paid leave. If this is the case, the leave is carried over until the worker has the opportunity to exercise that right, or until termination.

Furthermore, since the existence of the right to paid leave cannot be subject to any preconditions whatsoever, it was irrelevant whether or not Mr King had actually put in requests for paid leave over the years.

The ECJ therefore held that, where a worker has not exercised their right to paid holiday over several years because their employer wrongly failed to provide holiday pay, the Directive requires that the worker be allowed to carry over their paid holiday rights until the termination of employment.

Comment

This decision will have significant implications for those whose status has been misclassified as genuinely self-employed rather than worker, and has increased the already high stakes in the “gig economy” status cases currently going through the courts and tribunals.

Employers could be required to pay large amounts to workers on termination, not only for the unpaid holiday they have taken, but also, following this case, for the holiday they have been discouraged from taking because it would have been unpaid.

Even if employers start offering paid holiday going forward, liability for the past untaken holiday would remain until termination.

The matter will now return to the Court of Appeal for a final decision.

As part of the government’s routine “naming and shaming” of employers that have failed to pay their staff the national minimum wage, 16,000 workers are set to receive back pay amounting to £1.7 million. According to the latest list, 260 businesses have failed to pay the minimum wage and will now have to pay around £1.7 million worth of back pay to workers, along with £1.3 million in fines.

 

Common mistakes by employers in this round included failing to pay workers commuting between jobs, refusing to pay overtime and wrongfully deducting money for staff uniforms.

On 30 November 2017, a government press release announced that, following low referral rates, the assessment services provided by the Fit for Work service (FFW) would come to an end in England and Wales on 31 March 2018 and no new referrals will be accepted.

Acas has published statistics on its early conciliation (EC) service covering the period April to September 2017.

 

According to the statistics, the number of notifications received by Acas between April 2017 and the end of July 2017 were consistent with those received throughout the course of 2016-2017, with Acas receiving roughly 1,700 notifications a week.

 

Since the removal of tribunal fees there has unsurprisingly been an increase in the number of EC receipts at 23%.

In this case against Morrisons Supermarket, the High Court has considered whether an employer is vicariously liable for an employee’s deliberate disclosure of co-workers’ personal data.

 

Background

Mr Skelton (S) was employed by Morrisons as a senior IT internal auditor. As such, he was in a position of trust and had access to, and could use, personal data about employees which was sensitive and confidential in nature, including payroll-related information. In addition to his job at Morrisons, unknown at the time to Morrisons, he also sold a legal slimming drug on e-Bay.

 

On 20 May 2013, he needed to send a package of the drug to a customer and, for convenience, used Morrisons’ postroom. While in the postroom, the package split revealing a white powder, causing alarm to those around. Following suspicions that the white powder was an illegal drug, the police were called and S was arrested. He was suspended while the police carried out tests on the powder which eventually revealed that it was a legal substance.

 

S returned to work on 3 July 2013 when Morrisons decided to subject him to a disciplinary procedure on the basis that his actions had caused so much alarm, could potentially have closed the postroom for the day and were not in accordance with Morrisons’ values. He appealed, on the basis that Morrisions’ reaction was disproportionate to his own actions, but his appeal was dismissed.

 

On 1 November 2013, Morrisons external auditors requested payroll data. S was tasked with sending that data. The data was contained on secure software, to which only a few employees had direct “super-user” access. This included some employees in the HR department but not S. S was instead provided with an encrypted USB stick, which contained the information and which he downloaded onto his work computer. He subsequently loaded the information onto another USB stick provided by the auditors and forwarded it to them.

 

However, the downloaded data remained on S’s computer and he copied it onto a personal USB stick on 18 November 2013. On 12 January 2014, just before Morrisons’ annual financial reports were announced, a file containing the personal details of almost 100,000 Morrisons’ employees was posted on a file sharing website by S. S had used another employee’s details to open an account in order to post the file onto the internet.

 

On 19 March 2014, S was arrested. In July 2015, he was convicted and sentenced to eight years in prison.

 

The co-workers whose data had been disclosed made a group civil claim against Morrisons for compensation in respect of:

• A breach of its statutory duty under the Data Protection Act.
• Misuse of private information.
• Breach of confidence.

They argued that Morrisons had both liability for its own acts and omissions and vicarious liability for the actions of S.

 

Decision

The High Court upheld the claim based on vicarious liability however Morrisons have been granted leave to appeal and have indicated that they will do so.

 

Comment

It is therefore unlikely that we have heard the last of this case.

 

In the meantime, it is a worrying decision for employers. The court acknowledged that there is no failsafe system for entrusting individuals to handle such data, and that there will always be rogue employees yet it went on to find Morrisons liable. There was significant evidence that Morrisons had several appropriate measures in place to ensure the security of such information. Although Morrisons approach to deletion was found to be lacking, the court also found that the lack of those procedures in place did not ultimately lead to S’s disclosure. So the finding of liability was more policy driven than based on Morrisons’ culpability.

 

From a data protection perspective, this decision is also extremely important both as a result of being the first ever class action concerning a data breach to be heard by the courts but also because of the substantial financial implications for data controllers.

 

The ruling suggests that even where a data controller has done as much as reasonably possible to prevent the misuse of data they may still be found to be vicariously liable for any employee misusing data. If Morrisons’ appeal is unsuccessful, then it will be forced to compensate the 5,518 claimants. However, there are a further 94,480 employees whose data was disclosed who may decide to also make a claim meaning the financial implications for Morrisons could be huge.

 

The coming into force of the GDPR in May 2018 should also be noted, as we will see an increase in class actions for compensation. In addition, such organisations may also be subject to administrative fines.  Under the GDPR, administrative fines could be up to EUR20 million or up to 2 or 4% of the total annual worldwide turnover of the preceding financial year (depending on the nature and severity of the infringement).

Travel Disruption due to bad weather

From time to time, travel disruption can affect an employee’s ability to get to work on time, or in some cases at all. For situations from public transport cancellations to severe weather, employers and employees should consider how this could impact on the workforce.

• Employees are not automatically entitled to pay if they are unable to get to work because of travel disruption. Employees are obliged to attend work unless they are sick, on holiday or on statutory leave. Therefore, if the workplace is open and employees cannot make it into work because they are “snowed-in”, employers are entitled to treat the absence as unauthorised and are under no obligation to pay them.

• If schools are closed or an employee’s childcare is unavailable, an employee is able to take unpaid time off to look after their child or other dependant.

• If an employer is forced to close the workplace due to severe weather conditions, then employees are entitled to be paid for the day that the workplace is closed.

• If an employee falsely uses weather disruption as an excuse to be absent from work or to arrive late, then this may be a disciplinary matter. Employers are advised to let employees know when adverse travel conditions have subsided and that any further time off will need to be taken as holiday.

• Employers cannot oblige an employee to come into work and must not pressure employees to risk their safety to get to the workplace.

• Employers cannot force an employee to take a holiday unless this is expressly stated in their contact of employment.

Both employers and employees are reminded to be flexible and communicate effectively with respect to these issues. The handling of bad weather and travel disruption can be an opportunity for an employer to enhance staff morale and productivity. For example, they could look into the possibility of employees working from home and should effectively plan ahead to counteract any adverse disruption.

14 Things HR Need To Know About Christmas

1. Decorations

Employers are obliged to provide and maintain a safe place of work for employees. While employers’ health and safety obligations should not be used as an excuse to dampen the festive spirit in the workplace, employers should be aware of their obligations to employees under the legislation and take common sense precautions when it comes to decking out the office for Christmas.

Employer’s should take precautions such as providing staff with suitable step ladders to put up decorations, making sure that Christmas trees are not blocking fire escape routes or exits, and checking any novelty lighting for defects and ensuring compliance with insurance policies.

2. Secret Santa

While Secret Santa in the office is often seen as a bit of fun, the anonymity involved can sometimes result in inappropriate, and even offensive gifts, being exchanged between colleagues.

Employers should ensure that employees are encouraged to consider in advance of selecting a gift whether their choice of Secret Santa gift might cause offence or be construed as discrimination, bullying or harassment.

3. Public Holidays

There are three public holidays over the Christmas period; Christmas Day (25 December), Boxing Day (26 December) and New Year’s Day (1 January).

Employers are advised to draw up rosters and confirm with employees the days they will be required to work over the holiday period in early December to avoid any confusion or upset amongst staff.

4. The Party

An employer is vicariously liable for the conduct of its employees at a Christmas party organised by the employer.

In order to avoid any discrimination claims everyone in the business should be invited to the Christmas party whether or not they are on sick or maternity leave.

Employers should ensure that employees understand the standard of conduct expected of them at a Christmas party

5. At the Office

If you are planning to hold the Christmas party in the office you may want to consider removing electrical equipment, using plastic cups and adhering to general food hygiene.

You may also want to consider rules about misuse of the office photocopier!

6. Menu and Venue

You should ensure that all needs are catered for (e.g. vegetarians, non-drinkers) and that the venue is suitable for disabled access. You may also be held responsible for organising the journey home if the location is rural.

If you employ staff under the age of 18 remember it is an offence to consume alcohol under age and  it is also an offence to knowingly permit or condone illegal drug use.

Also ensure that any comedy entertainment does not offend people based on their religion or sexual orientation for example.

7. Date and Time

Plan your Christmas party so that it does not clash with other religious events (e.g. Hanukah) and consider people’s child care commitments.

If people are unable to attend consider minimising the number of emails sent about the event so that they do not feel excluded.

8. Christmas Party conversations

An employee was promised by his manager at the Christmas party that his salary would double over the following two year period. The employee subsequently resigned, claiming constructive dismissal on the grounds that his manager had broken this promise.

The Employment Appeal Tribunal decided that the context of the conversation (the company Christmas party) indicated that the manager did not intend to enter into any legally binding contractual commitment, rather it was more a statement of intent.

This case should not be interpreted as meaning that things said at the Christmas party cannot be intended to create legally binding commitments and this “case could easily have gone the other way”.

Employers should advise managers not to discuss career potential or remuneration with employees at the company Christmas party.

9. Social Media

It might be said that there is no such thing as bad publicity but the last thing an employer needs is for images or footage from its Christmas party going viral on social media sites for all the wrong reasons.

Employers should ensure that employees are aware, either through the company Social Media Policy or specific guidelines circulated in advance of the Christmas party, that employees should not place material on social media sites which would adversely affect the reputation of the employer or that breaches its bullying and harassment procedures and that such conduct may result in the employee being disciplined in accordance with the employer’s disciplinary policy.

10. The Morning After

Employers are obliged, to provide as far as is practicable, a safe place of work. Employers should be mindful of such obligations to employees who are required to work the day after the Christmas party, in particular those employees who drive or operate machinery. An employee should not be at work under the influence of drugs or alcohol so that they do not endanger their own or another person’s health and safety at work.

Employers may want to place a cap on alcohol served as free bars can be seen to endorse excessive binge drinking and therefore any consequential drunk behaviour.

Employer’s should tell all employees of their expectations that employees who report to work the day after the Christmas party are not under the influence of alcohol or drugs.

11. Christmas Bonus – is it discretionary?

It is common practice at this time of the year for employers to give employees Christmas bonuses as a gesture of goodwill.

If an employee’s contract of employment is silent in relation to the payment of a Christmas bonus, an employee may argue that such a bonus is an implied term of his/her employment contract where there has been a custom and practice of paying the bonus on a yearly basis over a number of years.

An employer should ensure that its employees’ contracts of employment expressly state that a Christmas bonus is payable wholly at the discretion of the employer and is not a contractual entitlement. However, employers should bear in mind that the less they use such discretion, the more difficult it is to rely on it.

12. Christmas Bonus non-discriminatory

In calculating Christmas bonuses an employer should ensure that if a bonus is based on company or team performance throughout the year that employees who have been on leave of absent from the workplace during the year owing to, for example, maternity or medical reasons, should not be discriminated against or treated less favourably than employees who have not been absent on such leave.

13. Snow Days

If an employee fails to attend work due to snow travel disruption, they have no statutory right to be paid.

Where an employee is unable to attend work due to snow travel disruption, the employee is not entitled to be paid but an employer should look at each situation on a case-by-case basis and should consider the possibility of an employee working remotely pending the employee’s return to work or taking annual leave.

14. Merry Christmas!

The main thing is that you and your colleagues enjoy Christmas.

Have a wonderful Christmas from all at Morgan LaRoche.

 

Most employers have passed their automatic enrolment staging date and are automatically enrolling new workers into a pension scheme as a matter of routine. However, employers need to be aware of two important deadlines: a step-up of the minimum defined contribution rates; and cyclical automatic re-enrolment, every three years, of those who have opted-out of membership of the scheme.

Defined Contribution rates

From 6 April 2018, the minimum contributions required to meet automatic enrolment obligations to a DC automatic enrolment pension scheme will increase.

Employers that have not already done so should check their DC pension contribution rates against the minimum rates required from 6 April 2018.

In order to meet the new requirements, some employers will need to increase their contributions, or may wish to increase workers’ contributions, or both, from 6 April 2018.

An employer wishing to increase workers’ contribution rates should take legal advice on the position under their employment contracts.

Cyclical automatic re-enrolment

In addition to their ongoing duties for the enrolment of new workers, employers are now being affected by the cyclical automatic re-enrolment requirement, with the largest employers affected first. This is a requirement, every three years, for every employer of UK workers to re-enrol eligible workers who have opted out of, or have otherwise voluntarily left, their automatic enrolment pension scheme. Workers must then opt out again if they still do not want to be a member.

The automatic re-enrolment exercise must be carried out every three years.

For those workers who have to be re-enrolled, the procedure is in many ways the same as for the initial automatic enrolment exercise but on a much smaller scale there are, however, some important differences: all of the employer’s re-enrolments must take effect from a single date and there is generally no option to postpone automatic re-enrolment.

As for automatic enrolment, employers must declare to the Pensions Regulator that they have complied with their re-enrolment duties.