Introduction data protection

Regardless of Brexit, GDPR will bring in a range of new rights allowing employees to access information held on them by employers. GDPR will replace the provisions of the Data Protection Act 1998 (DPA).

GDPR preserves the current rights regarding data and also provides new and enhanced rights and protection for individuals, who are known as 'data subjects'. Failure to comply with the provisions of the GDPR may lead to greatly increased monetary sanctions, so it is critical that any organisations processing personal data are aware of the changes.

Key changes
New data subject rights include the right to erasure, requiring an organisation to delete the personal data it holds and to cease processing it any further.  This data could include personnel records, metadata on computers and servers, CCTV, call logs, electronic premises access records, health and safety reports and any other electronic records or filing systems used within a Company.

In addition, individuals will have a right of personal data to be corrected if it is being processed inaccurately and the right to data portability, essentially giving an individual the ability to have a copy of their personal data in a commonly used and a machine-readable format.

Subject access requests
Perhaps the most prominent and commonly used right under the DPA is 'subject access', where a worker can make a request to see what information is held about them.  The access request is often made during a dispute or Employment Tribunal claim and can result in a company spending hours checking paper documents, email histories and a huge amount of computer files.  This is changing under the GDPR. GDPR defines personal data as 'any information relating to a data subject' and a data subject as an identified or identifiable (whether directly or indirectly) living person to whom personal data relates. 

Companies, will have to consider how to identify individuals, in particular employees. Names clearly identify a person, but so may an email address, payroll number and computer login details. Careful consideration will need to be given to any other aspects of a company’s operation that uses alternative designations (through coding or shorthand) to identify an individual.

GDPR sets out the purpose of a subject access request, something that is not explicit in the current regime. The right of access is stated to enable an individual to be aware of, and to verify, the lawfulness of the processing of their personal data.

Company's will need to use 'reasonable means' to identify those making a subject access request. For an employee, this should be sufficiently easy given the nature of the relationship.  When requesters are not employees, you will need to set out a process to check the identification requirements needed to be sure that the requester is authenticated. This could include asking for passport/driving licence and recent utility bills. This data should only be processed in order to verify the identity of a requester. It should be processed no further once that purpose has been satisfied.

Further, under the DPA a fee of up to £10 can be charged for responding to a request. Helpfully, the time for complying with a request does not commence until payment has been made. This will no longer be the case under the GDPR as the right to charge a fee as standard is abolished.  Organisations will be able to charge a 'reasonable fee' when complying with requests for additional copies of data previously provided. The Information Commissioner’s Office states that the fee must be based on the administrative cost of providing the further copies. To clarify, this would not enable a Company to charge for a subsequent subject access request that sought data that had not been previously requested or provided.

Another big change to the subject access regime will be the time allowed for compliance. Less time will be available in order to comply with a subject access request. The current regime allows for 40 calendar days, but the GDPR will reduce this to one month.  Companies, may, however be able to seek an extension of up to a maximum of two further months in cases of complex or numerous requests from an individual. If an organisation seeks an extension, it must notify the requester within one month of receiving the original request and set out why the extension is necessary. Any explanation will need to be sufficiently detailed in order to justify the request.

Company's will be able to exercise their right, where legitimate, to ask the requester to specify the information relating to the request. The request will not pause the time for complying, but it may be of particular use to those organisations that process large amounts of personal data, bringing the search into focus.  

Finally, Company's will be able to  keep in mind whether a request is manifestly unfounded or excessive. This is a new avenue for organisations receiving disproportionate requests. Company's may be able to refuse to respond to such requests, or rely on the administrative charge if the information is something that has been provided previously. Deciding whether a request is 'manifestly unfounded or excessive' will turn on the individual facts.

As we get closer to the GDPR deadline, more guidance will be available and we will feature this topic regularly within this newsletter.

Young workers

Employing young workers

With the increase in apprenticeships, many organisations are employing young people for the first time.  This article provides tips and guidelines on employing individuals who are under 18.

There are a number of employment rights all workers have when they start a job, but young workers - those under 18 years old - usually have a few additional or different rights to protect them at work.

Relevant employment law

The regulation of the employment of people under 18 years of age is covered by two separate, but related, regimes. The key distinction is whether an individual is a 'child' or a 'young person'.  The definitions are:-

Child: a child is anyone who is of compulsory school age, ie; has not reached the official age at which they can leave school. A person can leave school on the last Friday in June in the academic year in which they turn 16, provided he or she continues to receive some form of education or training until the age of 18. Such compulsory education or training will often be provided by an employer – for instance, in the form of an apprenticeship or training scheme.

Young person: a young person is anyone who is over compulsory school age, but under the age of 18.

What to do before employing young people

The general position is that young people can be employed, but employers need to be aware of a few specific restrictions.  Young people should not carry out work that is beyond their physical or mental capacity. Unfortunately, there is no reported judicial or administrative guidance on what 'capacity' means in this context and the employer will need to make a decision on each young person on a case-by-case basis.

Young people cannot generally be employed in roles that involve:-

  • Contact with chemical agents, toxic material or radiation
  • Extreme cold, heat or vibration which pose a risk to health.

These latter restrictions will not apply if such risks are necessary to the young person’s training, there is proper supervision, and the risk has been reduced to the lowest level that is reasonably possible. Again, the extent to which an employer is able to mitigate risks will depend on the situation in each case. As a result, best practice is to consider each case on its own merits, rather than applying a blanket rule.

Safeguarding

Disclosure and Barring Service (DBS) checks must be carried out on any employees who will have day-to-day responsibility for a 'child' or are likely to work with a child unsupervised. This would ordinarily include the child’s line manager and/or supervisor. DBS checks are not usually necessary when employing young people, unless there is a residential or travel element (for instance, a weekend residential course).

Health and Safety

Employers are required by the Management of Health and Safety at Work Regulations 1999 to carry out such risk assessments in respect of all employees – not only children or young people. However, organisations that employ children or young people must carry out the assessment with those individuals specifically in mind. They must consider a number of factors, such as:-

  • The inexperience and immaturity of young people
  • The suitability of work equipment for use by young people. This is why often age limits are in place on the use of some equipment and machinery such as fork lift trucks.
  • The extent of health and safety training that will be required.

If employing a child, the child’s parents must be provided with a copy of the assessment.

Working time

Young workers are entitled to:-

  • At least 48 hours of uninterrupted rest each week
  • A daily rest break of 12 consecutive hours (the break between finishing work one day and starting work the next)
  • A rest break of at least 30 minutes if the working day lasts more than 4.5 hours. The rest break can be unpaid
  • Young workers normally will not work more than 8 hours a day and 40 hours a week
  • Young workers cannot work between 10pm and 6am, although there are some limited some exceptions (see next section)
  • All workers are entitled to at least the statutory annual leave allowance of 5.6 of their working week.

Night work

Workers under 18 are not usually allowed to work at night, however, there are some exceptions. Younger workers may work during the night if they are employed in a hospital or similar places of work, or in areas such as, advertising, sporting or cultural activities.

Younger workers may work between 10pm or 11pm to midnight and between 4am to 6/7am if they are employed in:-

  • Agriculture
  • Retail trading
  • Postal or newspaper deliveries
  • A catering business, hotel, public house, restaurant etc
  • A bakery.

They may work when the work is necessary to, maintain continuity of service or production, or respond to demand for services or products.

Wage rates

Most workers over school leaving age will be entitled to receive the National Minimum Wage and National Living Wage. Young people must be paid the rate for their age, this includes, 16-17 year olds who are above school leaving age but under 18, and apprentices under 19.

England only

Young people who do not hold a level 3 educational training qualification are required to stay in education or training at least part-time, until they are 18 years old. They are required to take part in education or training through either:-

  • Full-time education or training, including school, or college
  • Work-based learning, such as Apprenticeships or part-time education, or training, or volunteering more than 20 hours a week
  • The education or training can be work-based.

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How to ... make an offer of employment

Once you have selected your ideal candidate, there are a number of steps to go through to make an offer of employment.  You will want to set out the key terms that applies to your offer of employment, including a caveat on what you will do if all the recruitment checks are not satisfactory.  In the offer letter you should cover:-

  • The job title, hours of work, whether it is on a fixed term basis and the rate of pay.  Some employers enclose the contract of employment with the offer letter in which case you can simply reference this document within the offer letter
  • The contract of employment must be issued within 8 weeks of the employee’s start date, so enclosing the contract with the offer, meets this requirement, as well as setting out all the main terms of the contract so there can be no argument down the line
  • It is good practice to state that the offer set out supersedes any previous discussions, which will avoid any confusion if there have been any discussions or negotiations about the job
  • Ensure you advise any conditions that have to be met, for example the offer could be subject to satisfactory references, right to work, confirmation of qualifications, etc (see below)
  • Request the candidate accepts this offer within a certain timescale and how they accept it, ie; they need to ring, send back a copy of the offer letter, etc.

Conditions

The offer of employment is usually conditional which must be made clear to the prospective employee.  The usual conditions are:-

  • Subject to receipt of references which are satisfactory to the company.  If you do not make an offer subject to satisfactory references, you might be obliged to give or pay contractual notice if you wish to subsequently withdraw an offer of employment.
  • Receipt of medical report or completed medical questionnaire that is satisfactory to you. If the medical information does not come back satisfactory, you will need to be careful about withdrawing the offer of employment as the health matters may be classed as a disability.  In this case you will need to consider if there are any reasonable adjustments to allow the candidate to do the job and only after all options have been explored, consider withdrawing the offer of employment.
  • Receipt of a criminal records check. You can only seek a Disclosure and Barring Service check (formally a CRB check) if you are proposing to employ the individual into a particular occupation (usually working with children or vulnerable adults).
  • Confirmation of qualifications. Ask to see original copies of qualifications, if the job has been offered because of these qualifications, for example you may wish to check they are a qualified accountant, surveyor, etc.  In addition, particularly for senior roles or in sales jobs, you might need to ask for a copy of their contract from their existing employer to check there are no restrictive covenants that could prevent them from taking up your job offer.
  • Confirmation that the employee has the right to work in the UK.  For all employees, you need to carry out checks, before a candidate commences employment, and to keep a record of the checks you have carried out in case of an audit.  If you fail to carry out checks, the company will be subject to criminal and civil penalties (up to £20,000 per individual found to be illegally working). If you have proof of your checks, no penalties will be applied even if the employee has provided you with false documents which were not obviously false.  The easiest way to check a person has the right to work in the UK is to ask the candidate if they have an in-date 10 year passport.  If a passport is not available a document which shows their name and NI number and name and date of birth.  The documents should be copied and immediately returned to the individual.   If the employee has a specific working visa, you need to check that the visa allows them to do the type of work you are requiring of them and note if there is an expiry date.  If there is an expiry date, diarise this at least 2 months prior as the necessary approvals for any extension can take some time.

Withdrawing the offer

From time to time you might have to withdraw an offer because the conditions you have based the offer on have not been met.  It is important to not act hastily, for example if the criminal records check shows a shoplifting incident when they were 17 and they will not come into contact with money in their job, it may not be appropriate to withdraw the offer.  Document the reasons for withdrawing the offer and keep the documentary evidence that supports the reasons for your decision in case of complaint down the line.

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