Employment Highlights – January 2018

The main news in January has been to make sure that Businesses are getting themselves ready for the GDPR final date in May. Privacy notices and consent being the main focus.

Fit for Work scheme that was rolled out by the Government to provide smaller companies with an occupational health solution will end by 31 March 2018.

The European Court of Human Rights (ECtHR) has held that an employer’s installation of hidden video cameras to monitor employees violated their Article 8 privacy rights as it was neither proportionate nor necessary in the circumstances. The decision is in line with ICO guidance which permits covert surveillance of employees only in exceptional circumstances. This doesn’t mean that the decision imposes a ban on monitoring or even covert surveillance. Although investigating misconduct is a legitimate aim, the case shows clearly that even criminal misconduct will not justify excessively intrusive investigations. Therefore, you need to ensure that you take the following steps:

  • Each case needs to be considered on its own merits. Note that the GDPR requires appropriate organizational methods to ensure that the data protection principles are followed. Employers should develop protocols for monitoring and surveillance measures, ensure managers involved are recording steps taken and provide for senior managerial oversight.
  • Employers should be wary of proceeding to monitor or investigate without having a clear reasonable basis for suspecting misconduct.
  • When considering the scope of an investigation, the employer should determine the aims of the investigation and what steps need to be taken to support those aims. There may be significant differences in the scope and approach of:
    • investigations into identifying those responsible for ongoing conduct;
    • investigations to establish past conduct by an already identified employee; and
    • investigations into how the conduct of numerous employees can be improved or redirected in the future.
  • Monitoring should be restricted to only those employees in relation to whom reasonable suspicion arises. Record the reasons why each employee is suspected before embarking on any investigation or surveillance.
  • Employers should consider the impact of monitoring from the employee’s perspective and the possibility that it could intrude on their privacy.
  • Consider whether there are less intrusive steps that could be taken. The more intrusive the steps to be taken, the more those reasons need to be compelling.
  • Employers must follow the data protection principles in handling the evidence obtained from investigations. Personal data should be stored in a secure manner, and only viewed and shared to the extent necessary for the identified purpose of the investigation. The GDPR requires a record to be kept of how data has been processed.
  • Evidence collected from monitoring or surveillance should only be used for its intended purpose and should be deleted or destroyed once that purpose has expired.

Meanwhile, discussions around the protection of employee data continue ahead the GDPR’s introduction on the 25 May 2018. The European Commission has published new GDPR guidance and has launched a new online tool to help SMEs comply with the Regulation.

This month, the EAT has handed down a number of notable decisions, including a first-of-its-kind ruling that a direct discrimination claim can be brought based on a perceived disability. The EAT has also clarified the scope of whistleblowing law, confirming the circumstances in which a worker can sue a colleague based overseas for whistleblowing detriment, and holding that those accused of detriment must have knowledge of, and be personally motivated by, the protected disclosure, before they can be held accountable.

In other news, the Fawcett Society has published the findings of its review into the UK’s sex discrimination laws, the DWP has published its 2017 review of pensions auto-enrolment, and the number of employers requesting restricted sponsorship certificates to enable them to bring migrant workers to the UK has exceeded the monthly cap for the first time since July 2015 resulting in some applications being refused.

Finally, a new online service has been launched for individuals applying for basic criminal records checks, as applicants in England and Wales will now be required to apply directly to the DBS to obtain a certificate. Disclosure Scotland will no longer be dealing with requests from such applicants from 17 January 2018.

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