December 21

Managing Christmas in the workplace…

1. What should employers do to prepare for the festive season?

Issue a statement to employees in advance of a Christmas party (or similar work-related event) to remind employees of conduct matters, including the dangers of excess alcohol consumption, and behaviours that could be viewed as harassment.

2. Do employers really need to be proactive on behaviour on workplace social events?

Yes, because employers have a duty of care towards staff, and as a matter of good practice.

The Equality Act 2010 makes employers liable for acts of discrimination, harassment and victimisation carried out by their employees in the course of employment, unless they can show that they took reasonable steps to prevent such acts.

3. Is an employer responsible for what happens at a Christmas party?

It is safe to assume that an employer will be liable for an employee’s behaviour even if it is during an office party. In a recent case a police officer complained of sexual harassment by work colleagues in a pub outside working hours. The tribunal held that social events away from the police station involving officers from work either immediately after work, or for an organised party, fell within the “course of employment” and thus the employer was liable.

4. Can employees be disciplined for misconduct after a Christmas party?

Yes, if the incident is sufficiently closely connected to work to have had an impact on the working situation. A tribunal recently held that the employer was found to have fairly dismissed an employee for a brawl after the end of a Christmas party.

5. What should an employer do where more than one employee is involved in the same incident?

Where the circumstances are truly parallel, employees must generally be treated the same. Establishing “who is to blame”, however, can be difficult where memories are blurred by alcohol and the evidence is unclear.

In a case involving two zoo keepers who got into a fight at London Zoo’s Christmas party, one was dismissed and the other was issued with a final written warning. Given the lack of clear evidence as to who started the fight, the employment tribunal found the dismissal to be unfair. The tribunal held that the employer could have legitimately dismissed them both, or issued both with final written warnings.

6. Can employers compel their employees to work overtime in the run-up to Christmas?

If the contract of employment includes a clause requiring an employee to work overtime when required, then it will generally be reasonable to take disciplinary action if an employee refuses to do so.

In one case, an employee of a small food company was dismissed for gross misconduct, having refused to work overtime during the company’s busiest period, despite a clause in her contract requiring her to work extra hours when required.

An employment tribunal found the dismissal to be fair and within the “range of reasonable responses”, not least because the consequences for the employer’s business of not dismissing her could have been “disastrous”.

7. Can an employee insist on taking holidays during the Christmas period?

No. In the absence of an agreement to the contrary, workers must give notice equal to twice the length of the holiday that they wish to take.

The employer can then give counter notice requiring that the leave not be taken, so long as this counter notice is equivalent to the length of the holiday requested, and the worker is not prevented from taking the leave to which he or she is entitled in that holiday year.

Where an employee has accrued untaken leave and gives reasonable notice to the employer to take the leave, the employer must have valid business reasons for refusing the employee’s request to take leave.

Where an employee insists on taking leave and does so without approval, the employer should approach the issue sensibly and be careful not to impose a disproportionate penalty on the employee. In a recent case an employee who was dismissed for failing to attend work without permission on Christmas Eve was found to have been unfairly dismissed by an employment tribunal – the dismissal was not a proportionate response.

8. What if an employee comes to work late, or not at all, the day after the Christmas party?

An employer can make deductions from employees’ pay if they turn up for work late the morning after the company Christmas party as long as the right to make deductions from wages for unauthorised absence is reserved in the employment contract.

If disciplinary action is to be taken for lateness or non-attendance after the Christmas party, employers should ensure that staff are informed that this is a possibility in the disciplinary policy.
Where an employee does not attend due to illness, the employer should follow its sickness absence procedures.

The retailer, Argos, reportedly offered an attendance allowance to encourage its staff not to take time off sick! This may be attractive but care needs to be taken as such an allowance carries the serious risk of an indirect disability discrimination complaint that may be difficult to justify.

9. Can employers require employees to take annual leave during the Christmas period?

Yes. For those businesses that close over the Christmas period, employers will need to put in the contract a clause requiring workers to take annual leave at that time.

10. What if travel disruption delays an employee returning to work following the Christmas break?

This can be a common issue, particularly given planned strike action on rail services over the Christmas period.

While there is no obligation to pay employees who fail to attend work due to public transport issues, many employers will want to offer flexibility and alternative options – ie. if the role is suitable, technology may allow the employee to work from home or from another location. Alternatively, the employer could require the employee to make up the time later or take the time as paid annual leave.

December 21

What are the General Data Protection Regulations (GDPR)……employers take note!

Despite Brexit, the UK will implement the General Data Protection Regulations (GDPR) when it comes into force on 25 May 2018. There are significant changes employers need to be aware of – including a new penalty regime.

The GDPR harmonises data protection laws across the EU and updates the current 20-year-old regime to take account of globalisation and the ever-changing technology landscape.

An overview of the GDPR

It will apply not only to EU companies, but to any company processing the personal data of individuals in the EU in relation to offering goods or services, or to monitoring their behaviour.

Significant penalties can be imposed on employers that breach the GDPR, including fines of up to €20 million or 4% of annual worldwide turnover, whichever is greater.

The level of fine will depend on the type of breach and any mitigating factors, but they are undoubtedly meant to penalise any employer’s disregard for the GDPR.

The current statutory timeframe of 40 days to comply with a subject access request for data will be abolished and replaced with an obligation on employers to ‘comply without undue delay’ and at the latest within one month of the request. The removal of the 40 day period will make the employer’s duty to comply more onerous meaning policies and procedures will need to be updated and staff trained to ensure compliance with the new timeframes.

More detailed privacy notices

Under the current law, employers are required to provide employees and job applicants with a privacy notice setting out certain information – ie. some or all of the ways the employer gathers, uses, discloses and manages an individual’s data.

Under the GDPR, employers will need to provide more detailed information, such as:
· how long data will be stored for;
· if data will be transferred to other countries;
· information on the right to make a subject access request; and
· information on the right to have personal data deleted or rectified in certain instances.

Restrictions to consent

Currently, many employers justify processing personal data on the basis of employee consent. This approach has been increasingly criticised because there is doubt as to whether or not consent is actually given freely in the subordinate employer-employee relationship.

There are more prescriptive requirements for obtaining consent under the GDPR and employees must be able to withdraw their consent at any time. This will make it harder for employers to rely on consent to justify processing. Instead, employers will generally need to rely on one of the other legal grounds to process personal data – ie. that it is necessary for the proper performance of the employment contract, in order to comply with a legal obligation, or for the purposes of the employer’s legitimate interests.

New breach notification requirement

The GDPR imposes a new mandatory breach reporting requirement. Where there has been a data breach (such as an accidental or unlawful loss, or disclosure of personal data), the employer will have to notify and provide certain information to the data protection authority within 72 hours. Where the breach poses a high risk to the rights and freedoms of the individuals, those individuals will also have to be notified.

Data protection officers

All public authorities and those private companies involved in regular monitoring or large-scale processing of sensitive data will need to appoint a data protection officer to:
· advise on GDPR obligations;
· monitor compliance; and
· liaise with the data protection authority.

How to prepare now

Co-operation and understanding of the new GDPR obligations across the business is critical and organisations will need HR, legal, IT and compliance teams to take a combined approach.

The most important steps for HR to take now include:

1. Carry out a data audit. Carefully assess current HR data and related processing activities and identify any gaps with the GDPR.

2. Review current privacy notices and update them to comply with the more detailed information requirements. All information provided must be easy for employees and job applicants to understand.

3. Assess the legal grounds for processing personal data. Where consent is currently relied on, check whether or not it meets GDPR requirements and remember that consent may be revoked at any time. Employers will generally need to rely on one of the other legal grounds to continue to process employee personal data.

4. Develop a data breach response programme to ensure prompt notification. Allocate responsibility to certain people to investigate and contain a breach, and make a report. Train employees to recognise and address data breaches, and put appropriate policies and procedures in place.

5. Determine whether or not a data protection officer must be appointed and, if so, think about how best to recruit, train and resource one.