May 11

Employers…how to stay in line with GDPR when recruiting…..

During your recruitment process it is essential that you handle job applicant data in accordance with the strict new rules under the GDPR. The GDPR demands certain requirements as to the transparency about the processing and the communication with the job applicant.

This can be communicated in a privacy statement tailored specifically for job applicants.

Which requirements need to be met by a privacy statement?

A privacy statement must have the following characteristics:
• concise
• transparent
• easy to understand
• easy to access

These requirements should ensure that the candidate knows exactly where (s)he stands according to the protection of his or her data.

Additional and more specific requirements may apply, depending on the way data is being collected:

• Direct data collection is when the candidate inserts his data himself, for example via an application form.
• Indirect data collection is when a recruiter takes data, for example, from a candidate’s LinkedIn profile.

Direct processing of personal data

When data is being collected directly from the candidate, the privacy statement needs to be provided before or at the moment the data is being transferred. You can manage this by inserting a link to the privacy statement in the application form.

The privacy statement should at least contain the following information:

• the data processor’s identity and contact information
• the goal and legal foundation for the processing
• the data processor’s legitimate interest
• the possible recipients (or categories of recipients) of the personal data
• information regarding the forwarding of personal data to a third country (outside the EU), if that’s the case
• the storage period or the criteria that are being used to determine the storage period
• the person concerned needs to be informed about his/her rights
• the person concerned needs to be informed about his/her right to withdraw his/her approval for the processing of data
• the person concerned needs to be informed that he/she has the right to file a complaint
• it needs to be declared if automated decisions will be made

Indirect processing of personalised data

If data is collected indirectly, for example via LinkedIn, the same requirements as illustrated above apply. Additionally, it needs to be indicated which type of data (category) were processed and which source has been used.

If the personal data are being processed with the goal to communicate with the person concerned, this information needs to be provided at the moment of the first contact.
Also, if the personal data is being forwarded to third parties, the person concerned needs to be informed, at the latest when the data is being shared with third parties.

Identity and contact information

Both the identity and the contact information of the person who is in charge of the data processing need to be stated in the privacy statement.

Legal basis of the processing

In order to process personal data, there needs to be a legal basis for the processing. The following mentioned requirements need to be fulfilled:

• the person concerned has given their approval for the data processing
• the processing is necessary for the execution of a contract
• the processing is necessary for the data processor’s compliance with legal obligations
• the processing is needed for the protection of the parties’ vital interests
• the processing is necessary for the execution of a task
• the processing is necessary to comply with the legitimate interests of the person in charge of the processing

Storage period

Personal data may not be stored any longer than for the sole purpose of the collection. In general, data collected during the recruitment process should be deleted as soon as it becomes clear that the candidate won’t be hired.

If you want to store the candidate’s data for future offers, you need to inform them beforehand and be ready to delete it if they change their mind.

If you would like a privacy statement for the purposes of recruitment, please email me nicola.goodridge@goodhr.co.uk or call me on 07917 878384.

May 2

Can an employer dismiss an employee due to long term sickness?

It’s a common thought that employers are expected to keep a sick employee’s job open indefinitely. However this is not the case – although it is necessary to follow a fair procedure to manage a long term absence situation. If you proceed towards a dismissal you will potentially have to show that the dismissal was justified and fair after properly exploring all the options open to you.

What to consider when terminating employment on the grounds of ill health

An employment tribunal will consider if you have followed an appropriate procedure and would suggest you do the following before considering dismissal on grounds of ill health:
• Ensure the absence has been dealt with in accordance with your absence and capability policy
• Keep in touch with the employee regarding their condition and their prospects of a return to work.
• With the staff member’s permission, commission a report from an occupational health practitioner.
• In conjunction with occupational health guidance, formally review the role and the individual’s capability and decide whether adjustments can be made.
• Consider whether there is another job available in the company which the employee could do.
• Consider whether the job can be done part-time with recruitment if necessary.
• Assess the information available and determine whether the employee’s return to work can be facilitated.
• If a partial return to work can be considered, develop an “induction” or phased–in process.
• Keep in contact after a return.

Alternatively, after following the guidance above, in the event that no return to work date is foreseeable or suitable alternative employment cannot be found or reasonable adjustments or modifications to the workplace are not practical or possible, termination on grounds of ill health may result.

An important case in 2017 helpfully made the following points for employers to use when deciding whether to, and how to, fairly dismiss on the grounds of ill health:

• It is not necessarily unfair for an employer to decide that the time has come to dismiss an employee who has been absent for over 12 months with no certainty as to when the employee will be able to return. While an employee can easily advance the argument “give me a little more time and I am sure I will recover”, there comes a time when an employer is entitled to some finality.

• The severity of the impact on the employer of an employee’s continued absence must be a significant element when determining the point at which dismissal becomes justified. A tribunal considering a long-term sickness absence dismissal will expect some evidence of the disruption to the business, although in some cases the impact will be so obviously severe that a general statement from the employer to that effect will suffice.

• It is important that the medical evidence upon which a decision is being made is up to date. Repeated reports may have to be gained through the period of the illness or injury to ensure that changes in the prognosis are taken into account.

Importantly, the Court made it clear that employers are not expected to wait forever for an employee to recover from illness.

However, the court warned employers that, when balancing whether the time has come to dismiss, the employer needs to have considered the disruption to the business that the absence is causing. It is therefore a good idea for the employer to have a written record of the issues that are being caused, for example who has been brought in to cover the work, or what extra work colleagues are doing because of the absence.

Always seek advice before terminating on grounds of ill health as each case will turn on its facts.

Please call me on 07917 878384 or email me nicola.goodridge@goodhr.co.uk if you need advice.