OCTOBER 2013 // FOCUS ON: ACCESS ALL AREAS
AZETTE the quarterly newsletter of Floyd Graham & Co.
Lawyers for today’s employers
IN THIS ISSUE // ACCESS ALL AREAS
Floyd Graham & Co Solicitors Lawyers for today's employers
2 Deanery Court Grange Farm Preston Deanery Northants NN7 2DT Email: firstname.lastname@example.org Tel: +44 (0)1604 871143 www.floydgraham.co.uk
CHAIRMAN'S VIEW Hello again FGazette readers! Once again employment law is hitting the headlines and remains high on the government’s “to do” list. Recent contentious topics include zero hours contracts and how to ban them and the apparent disinterest by businesses in employees adopting shareholder status with a consequential loss of certain employment rights. This issue focuses on a few of the recent developments in terms of both legislation and guidance.
Finally, there are some things that employers should never try to get away with – employers cannot agree with an employee to pay them £1 in lieu of any accrued but untaken holiday entitlement, as confirmed by the tribunal’s judgment in Podlasiak v Edinburgh Woollen Mill Limited. This was a case about a zero hours contract; presumably it can only stoke the flames of the government’s zero hours contract bonfire.
One feature of this issue looks at the new guidance from the Information Commissioner’s Office in relation to dealing with requests from individuals for their personal information. You may be surprised at how much information employees are entitled to get their hands on… think twice before putting your possibly too frank views in an email about them.
Anyway, happy reading and remember that our team of employment lawyers is always on hand to guide you through the twists and turns of changing legislation.
Another interesting development is that of pre-termination negotiations – take note of the small but relevant changes the ACAS code on settlement agreements has brought.
IN THIS ISSUE // page 3 // fgC news page 4 // access all areas page 6 // pre-termination negotiations page 8 // BRAINTEASERS page 9 // LEGISLATION TIMETABLE
BRACKMILLS EMPLOYMENT LAW HOTLINE A dedicated hotline has been set up which gives companies access to free employment law and HR advice. A pilot initiative has been rolled out which is currently only available to Brackmills BID members. However, if it’s a success, we plan to widen the scheme by offering this opportunity to other businesses in the future!
SEE WHAT WE’VE BEEN UP TO AT FLOYD GRAHAM & CO H.Q.
SEMINAR EVENT On 10th October 2013 we are hosting a breakfast seminar on ‘High Performance Management’, in partnership with ACS recruitment. Places are limited so if you’re interested in attending please call us on: 01604 871143 or email: email@example.com
NEW WEBSITE! We're currently hard at work developing a new and exciting website for Floyd Graham & Co. We’re really excited, because we think the website will be cleaner, easier to navigate and will be really interactive too. So watch this space, as we’ll be revealing more soon!
ACCESS ALL Employees have the right to establish what information their employers hold about them Most employees pass through their employment without a second glance at this right. It is however becoming more common for employees who are in dispute with their employer, either during or after their employment has ended, to make a subject access request ("SAR") under the Data Protection Act 1998 ("DPA").
The purpose of the request is usually to obtain documents or information relevant to a potential tribunal claim before proceedings have started. The approach is tactical and is usually used to apply pressure on an employer particularly where the employee considers the employer may be holding information about them, which the employer would prefer to remain confidential.
These measures will allow employers to respond effectively to SARs, saving the time and effort of having to deal with costly disputes.
Those who have had to deal with SARs will know how time consuming and in some cases, complex they can be. In order to assist employers in managing requests from individuals about their data, the Information Commissioner’s Office (“ICO”) has published new guidance: the Subject Access Code of Practice – dealing with requests from individuals for personal information.
Whilst the Code runs to some 57 pages, the ICO has suggested ten simple steps which organisations should consider when responding to a SAR: ●● Identify whether a request should be considered. There is no prescribed format but the request will usually be made in writing and must relate to personal data concerning the individual or data from which the individual can be identified. ●● Make sure there is enough information to be sure of the requester’s identity. ●● If more information is needed from the requester to find out what they want, ask at an early stage. In most cases, a SAR must be responded to within 40 calendar days of receiving it. ●● If a fee is being charged, ask for it promptly. Currently, the fee is £10. ●● Check whether the information the requester wants exists. There may be a number of places where the data may be stored. For example, a database, in emails, in telephone or CCTV records as well as relevant filing systems (manual files).
Manual files are caught by the request where the data about the individual is part of a structured filing system and the information is readily accessible. ●● Don’t be tempted to make changes to the records, even if they are inaccurate or embarrassing. Email communications about employees will usually be caught by a SAR. Managers should be made aware of this as written communications containing sensitive or confidential information may cause embarrassment or difficulty if they have to subsequently be disclosed. Rather than send emails, it may be preferable to have a conversation, so long as this is not recorded. ●● Consider whether the records contain information about other people. Care needs to be taken so as not to disclose personal data about other individuals. Otherwise, there
could be a potential breach of other employees’ rights to have their data held securely under the DPA. Consideration should be given as to whether consent should be obtained unless it would be reasonable to continue without consent. Where possible redact the information that relates to third parties before disclosing the information. If an employer cannot still reasonably comply with the request without the consent of the third party, which has not been given, then the employer may be exempt from disclosure. ●● Consider whether any exemptions apply. There are a number of instances where an employer may not be required to provide personal data i.e. the data relates to management and business forecasting; the data is subject to legal privilege; or the data is contained in a confidential reference. ●● If the information includes complex terms or codes, then make sure these are explained.
●● Provide the response in a permanent form, where appropriate. The one thing that comes out of the Code is that access to personal data is a fundamental right; a properly made request cannot be ignored. Employers cannot simply refuse to hand over the employee’s personal data just because it could be used against them in tribunal proceedings or even because the search to locate the data is too onerous. Employers need to be prepared. The introduction of clear policies and procedures that incorporate the good practice recommendations of the Code are essential. Training should also be given to relevant staff about how to manage an individual’s rights under the DPA as well as SARs. These measures will allow employers to respond effectively to SARs, saving the time and effort of having to deal with costly disputes.
PRE-TERMINATION NEGOTIATIONS HOW TO PROTECT THE EMPLOYER You will no doubt have heard about the change in name of compromise agreements to settlement agreements. Equally, much has been made of the ability of employers to now have conversations with employees about termination with a view to reaching a settlement, without the fear that the employee will use that conversation against them to bring an unfair dismissal claim in the tribunal.
However, employers should be aware that this tempting proposition is not as simple as it first appears. In fact, ACAS has produced an 88 page guide in addition to the statutory Code of Practice on Settlement Agreements ("the Code"). As few employers will have the time to read this volume of guidance, we summarise opposite the main issues that employers should take into account when considering negotiating a settlement agreement.
01 Ensure that discussions are confidential. Involve as few people as possible and have any conversations away from the main work environment.
02 Consider the types of claims the employee could bring. One of the hotly debated disadvantages of the new legislation is that if you seek to rely solely on this legislation to have a pre-termination conversation, this will only cover unfair dismissal, not other types of claims such as discrimination and whistleblowing. To extend protection beyond the new legislation, consider whether the conversation should be “without prejudice”. Essentially (and the rule is somewhat more complicated than this), the “without prejudice” label can be applied to conversations where the parties are genuinely attempting to settle a dispute. If the label is correctly applied then statements made in these discussions cannot be used as evidence in future tribunal proceedings. The main advantage of discussions being “without prejudice” is that it could cover other claims in addition to unfair dismissal. If there are areas of dispute such as whistleblowing or discrimination, we would strongly advise seeking advice before commencing any pre-termination negotiations of any type.
03 Do not put undue pressure on the employee to agree to a settlement agreement. The Code suggests permitting the employee a minimum of 10 working days to consider the terms of a settlement agreement and seek independent advice.
Do not say to an employee before starting a disciplinary process that they will be dismissed if they do not accept the settlement offered. You can say, however, that there is a possibility of starting a disciplinary process (if this is the case).
05 Consider allowing the employee to be accompanied at a meeting to discuss a settlement proposal. This may not appear to be suitable for all organisations, particularly smaller organisations; one reason for this is that it increases the likelihood of any settlement proposal no longer being confidential. However, the offer of a companion is a suggestion of “good practice” by the Code and would be part of a fair process.
06 Ask the employee to sign a letter to confirm they are prepared to take part in "without prejudice" or pre-termination discussions. This is not a requirement of the Code, but would assist the employer in proving that the discussions were freely entered into and that they were acting fairly. We can provide you with a letter if this may be of assistance to you.
In summary, pre-termination negotiations can assist an employer in exiting a difficult employee, but careful consideration should be given to the nature of the discussions prior to them taking place. Employers should not simply rely on the new legislation to protect them against all types of tribunal claims.
Check your level of employment law knowledge with our quick quiz
1. Which one of the following is true? a) Employee shareholder status became possible from 1 July 2013. b) Employee shareholder status legislation is not yet in force. c) Employee shareholder status became possible from 1 September 2013.
3. Which one of the following is true? a) Employee shareholders must have been issued or allotted shares worth at least £8,000. b) Employee shareholders must have been issued or allotted shares worth at least £4,000. c) Employee shareholders must have been issued or allotted shares worth at least £2,000.
2. Which one of the following is true? a) The ACAS Code of Practice on Settlement Agreements suggests a period of at least 5 working days for any employee to consider the terms of a settlement agreement and seek independent advice. b) The ACAS Code of Practice on Settlement Agreements suggests a period of 10 working days for any employee to consider the terms of a settlement agreement and seek independent advice. c) The ACAS Code of Practice on Settlement Agreements does not suggest a particular period for an employee to consider the terms of a settlement agreement and seek independent advice - it should simply be "reasonable".
4. Which one of the following is true? a) The new legislation on pre-termination negotiations means that employers can have frank discussions with employees on any subject including the termination of their employment after they have brought a whistleblowing claim. b) The new legislation on pre-termination negotiations provides the same protection to an employer as "without prejudice" conversations. c) There is a statutory code produced by ACAS which should be followed when carrying out pre termination negotiations.
HAVE YOU GOT THEM RIGHT? answers below Answers: 1c, 2b, 3c, 4c. Congratulations if you answered 3 or 4 questions correctly! You appear to have a good understanding of employment law. If you answered less than 3 correctly, please do give us a call to discuss any areas of uncertainty.
EMPLOYMENT LAW QUIZ
legislation timetable Settlement Agreements and Negotiations
29 JULY 2013
Pre-termination negotiations became inadmissible in unfair dismissal cases and “compromise agreements” were renamed as “settlement agreements”.
Employment Tribunal Fees
29 JULY 2013
Fees were introduced for issuing claims and for final hearing, in the Employment Tribunals and Employment Appeal Tribunal
1 september 2013
New employee shareholder status came into force.
National Minimum Wage
1 october 2013
The standard adult rate (for workers aged 21 and over) will rise to £6.31 an hour. The development rate will rise to £5.03 an hour. The young workers rate will rise to £3.72 an hour. The rate for apprentices will rise to £2.68.
Gangmasters Licensing Authority
1 october 2013
Specified sectors to be excluded from the scope of GLA licensing.
Protection of Freedoms Act 2012
Portable disclosure and barring checks to be introduced.
TUPE 2006 Reform: Consultation
The government’s response indicates that new provisions will include: change of location constituting an “ETO” reason; lengthening the timeframe for the obligation to provide employee liability information; and allowing businesses to inform and consult with employees directly. There will be no repeal of the provisions relating to service provision change as originally proposed.
Mandatory Pre-Claim ACAS Conciliation
A duty on the parties and ACAS to attempt pre-claim conciliation involving a fourstage procedure for early conciliation, which must be attempted before a claim can be pursued.
The imposition of financial penalties to be paid into a Consolidation Fund by losing employers in a tribunal case.
The government has announced its decision to proceed with the extension of the right to request flexible working to all employees. A statutory code will be issued to give guidance as to how this will work in practice, to be supported by an ACAS good practice guide.
Sickness Absence Management A new approach to sickness absence management will be introduced.
SPOTLIGHT ON OUR SERVICES The competitive edge is no accident! There are encouraging signs that the economy is slowly improving. Businesses which embrace a high performance culture will be able to seize commercial opportunities. At Floyd Graham & Co our team of lawyers and HR Consultants have developed a process to contribute to a high performance culture and to solve two critical problems at the same time:
uu how to identify and prioritise opportunities for real improvements in business performance, through the implementation of appropriate HR strategies and policies; and uu how to manage the risk of costly litigation associated with non-compliant HR practices. Our HR and legal compliance audit service is discrete, non-intrusive, and confidential and has the following additional benefits for your business:
uu evaluates the effectiveness of HR processes, that is, the extent to which these processes support the business's strategic plan; uu identifies areas where efficiency and effectiveness can be improved, leading to improved bottom line performance; uu minimises the financial, operational and reputational risks associated with inadequate HR policies, processes and documentation; and uu gives owners and managers increased certainty and control and therefore greater confidence when managing your business. It is for these reasons that our clients are keen to recommend our HR and Legal Compliance Audit service, as a visit to our website will confirm.
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Lawyers for today's employers
Welcome to FGazette! The quarterly newsletter of Floyd Graham & Co - Lawyers for today's employers. In this month's edition, our focus is on...