The New Data Protection Bill

The Data Protection Bill 2017 was introduced to the House of Lords on 13 September 2017. The Bill, which is due to come into force in May 2018, will replace the Data Protection Act 1998 and incorporate the General Data Protection Regulation into national law so that the rules continue to apply after the UK has left the European Union.

The aims of the Bill are to:

  • make UK data protection laws fit for the digital age in which an ever increasing amount of data is processed;
  • give individuals greater control over their personal data; and
  • ensure that the UK is prepared for the future after Brexit.

The Department for Digital, Culture, Media and Sport has published the following factsheets explaining various aspects of the Bill:

  • An Overview of the Bill;
  • General Processing;
  • Law Enforcement Processing;
  • National Security Processing; and
  • Information Commissioner and Enforcement.

Under the revised legislation, the maximum penalty for regulatory breaches will increase from £500,000 to £18 million or 4 per cent of the undertaking’s total worldwide turnover in the preceding financial year – whichever is higher.

The text of the Bill and updates on its progress through Parliament can be found at https://services.parliament.uk/bills/2017-19/dataprotection.html.

These articles are provided for general interest and information only. They do not constitute legal advice. Whilst every effort is made to ensure that the content accurately reflects the law in England as at the date of its transmission, no liability is accepted for any loss or damage arising from any act or omission resulting from any information contained herein.

Strike Ballots Test Case – Trade Unions Don’t Have To Give Precise Dates

Trade unions have long been required to ballot members before calling a strike, but only recently have they also been required to indicate on voting papers the period, or periods, during which industrial action is proposed. That provision came under the spotlight in a High Court test case concerning a planned strike by airline pilots (Thomas Cook Airlines Limited v British Airline Pilots Association).

The dispute between the pilots and Thomas Cook Airlines Limited in respect of pay and conditions was acknowledged to be a trade dispute within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Following a ballot held by their trade union, a majority of affected pilots voted in favour of strike action.

In seeking an injunction to halt the strike, Thomas Cook argued that the strict terms of TULRCA had not been complied with. In particular, the airline pointed to Section 229(2D), which was incorporated into TULRCA by the Trade Union Act 2016 and came into force in March 2017.

Section 229(2D), which had not been considered by a court before, requires that voting papers used in such ballots must indicate the period or periods within which industrial action is expected to take place. The papers used in the instant case informed pilots that ‘discontinuous’ strike action was proposed on ‘dates to be announced’ between the period from 8 September 2017 to 18 February 2018. The airline argued that that wording was not in accordance with the provision, that the ballot was thus invalid and that no strike action could lawfully be taken.

In refusing to grant the order sought, however, the Court found that it was more likely than not that the ballot papers complied with the provision in Section 229(2D). This had to be read in the context of all the uncertainties inherent in trade disputes and it appeared unlikely that Parliament had intended to require trade unions to give further details or to specify precise dates. It was sufficient for the voting papers to indicate the period during which the strike action was expected to take place and, in the circumstances, those who took part in the ballot would have understood what they were being asked to vote for.

Prison Officer Wins Substantial Damages for Psychiatric Injuries

Workplace disciplinary proceedings can be extremely stressful and it is foreseeable that dragging them out unnecessarily can not only be a breach of the Advisory, Conciliation and Arbitration Service Code of Practice on Disciplinary and Grievance Procedures but can also cause psychiatric harm to employees. In one case, a prison officer who had serious allegations of sexual misconduct hanging over him for many months won the right to substantial damages (Marsh v Ministry of Justice).

The middle-aged officer had been caught up in a lengthy police inquiry into alleged inappropriate sexual contact between staff and female inmates at the prison where he worked. Police officers had searched his home and he was suspended from his post. However, no criminal charges were brought against him.

Following the decision not to prosecute him, his suspension was maintained for a further 20 months before he was finally exonerated by a disciplinary panel. He was invited to return to work but, by that time, his mental health had suffered so badly that he was unable to do so. He was eventually dismissed on ill health grounds.

In upholding his damages claim against the Ministry of Justice, the High Court was not satisfied that there had been any sexual misbehaviour on his part. Claims that he had brought drugs and alcohol into the prison were also rejected. In short, he had done nothing that might have justified his dismissal on misconduct grounds.

The Court accepted that there had been no breach of duty in the initial decision to suspend him. However, the disciplinary process had been unreasonably prolonged on the basis that it could not continue until the criminal prosecution of colleagues, including the prison’s governor, was complete. But for that delay, he would have recovered from his psychiatric injury and been able to return to work.

The man was awarded over £286,000 in damages, which included a £23,500 award for his pain, suffering and loss of amenity and compensation for lost earnings as a prison officer up to the age of 65.

Contact Damian for advice on handling any disciplinary matter.

Part-Time Workers and Discrimination

The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR), which came into force on 1 July 2000, established a minimum standard of fairness for part-timers so that they cannot be treated less favourably than comparable full-time co-workers, unless the treatment is justified on objective grounds.

In British Airways v Pinaud, the Employment Appeal Tribunal (EAT) considered whether a part-time airline worker whose basic annual salary was 50 per cent of that of a full-time crew member but whose contract stated that she had to be available to work for more than half the number of days required of a full-time employee had been subjected to less favourable treatment on account of her part-time status.

Florence Pinaud had worked full-time as a purser for British Airways (BA) until she returned from maternity leave in 2005, at which point she started to work part-time. Full-time staff worked a pattern of six days on and three days off, meaning that they were available for work for 243 days a year and off for 122 days. Part-time staff worked a pattern of 14 days on and 14 days off. They were required to be available to work for ten days during the ’14 days on period’, meaning that they had to be available for 130 days a year – more than half the available days required of a full-time worker. Because flights were allocated according to a system whereby staff could bid, according to personal preference, to work on longer flights, which might result in additional pay, or shorter flights, and staff were also required to carry out ground duties and undergo training, the actual hours worked could fluctuate and there was no clear link between days of availability and hours or even precise days worked. The annual basic salary did not vary with the number of duty hours, however.

Mrs Pinaud claimed that she had suffered less favourable treatment in two ways. Firstly, her contract of employment required her to be available to work for 3.5 per cent more days than a full-time worker. Secondly, she argued that she was regularly required to work more duty hours than her full-time equivalent. BA denied that the part-time pattern constituted less favourable treatment, but if it did it was justified as there was a legitimate aim to provide a workable 50 per cent contract working pattern. Any differences compared with full-time workers were trivial, resulting as they did from the system of bidding for flights, and were a proportionate means of achieving a legitimate aim.

The Employment Tribunal (ET) found that the 8.5 additional days per annum that a part-time worker was required to be available for work constituted a significant period and did amount to less favourable treatment. Whilst it agreed that there was a legitimate objective – i.e. to provide a flexible and predictable part-time shift pattern that worked for both BA and its staff, this was not reviewed at the time it was introduced to assess whether it may be discriminatory. Additionally, the less favourable treatment could have been eliminated by adjusting the salaries of part-time workers in a different way – for example by paying them 53.5 per cent of the full-time salary. Having reached that conclusion, the ET did not go on to consider Mrs Pinaud’s second claim regarding actual hours worked or the statistics produced by BA in evidence.

BA appealed against the ET’s ruling. The EAT upheld the ET’s decision that the term in Mrs Pinaud’s contract regarding availability for work did offend against the PTWR. However, when it came to the question of justification the ET had been wrong to dismiss the statistical evidence presented as irrelevant. Having accepted that the unfavourable treatment complained of was in pursuit of a legitimate aim, the ET was bound to carry out a practical assessment of the impact of that treatment when deciding whether or not it was appropriate and necessary for achieving the stated aim.

BA had argued that the effect of the unfavourable treatment was insignificant as in practical terms a part-time worker was not required to work more hours than her full-time comparator. This argument needed to be addressed. If the treatment had no impact on the amount of work Mrs Pinaud actually did, it was far from clear that an increase in salary as suggested by the ET was an alternative way of achieving the legitimate aim. Such a solution might be out of all proportion to the disparate treatment.

The case was therefore remitted to a fresh ET to consider the question of justification of the requirement as regards available days and a full examination of the second part of Mrs Pinaud’s claim.

Employers are advised to carry out periodic reviews of the contract terms of all categories of worker to ensure that these comply with the law. Contact Damian for advice.

Gender Reassignment Discrimination: Key Points for the Workplace

The Equality Act 2010 makes it unlawful to discriminate against someone or treat them unfairly because of gender reassignment. This guidance contains advice for employers to ensure they comply with the law in this regard. As well as an overview of the specific meaning of this protected characteristic, the guidance suggests ways in which employers can support trans workers and advises on adaptations to assist those undergoing gender reassignment and ways of managing any time off work this requires.

Workplace Support for Parents with Premature or Sick Babies

Each year, 95,000 premature or sick babies are born in the UK. This guidance contains important information for employees and employers on practical issues that can arise when an employee’s baby is born preterm or is born full-term but is unwell, and suggests ways in which employers can support employees in these difficult circumstances. See http://www.acas.org.uk/index.aspx?articleid=6049.

Monitoring of Employee’s Electronic Communications Did Violate His Privacy Rights

In the long-running case of Bărbulescu v Romania, the European Court of Human Rights (ECHR) looked at an employer’s right to examine an employee’s use of office computers for sending personal communications during working hours, in breach of the employer’s internal regulations, and ruled that the monitoring of the electronic communications was reasonable and an acceptable means of ensuring compliance with the rules. That decision has now been overturned by the Grand Chamber of the ECHR.

The case concerned a Romanian man, Mr Bărbulescu, who was employed by a private company as an engineer in charge of sales and, at his employer’s request, had created a Yahoo! Messenger account for the sole purpose of responding to clients’ enquiries. He was aware of his employer’s policy forbidding the use of any office equipment for personal communications and employees had been warned that use of company resources for personal purposes was prohibited after the dismissal of a colleague for breaching the rule.

On 13 July 2007, Mr Bărbulescu was informed that his Yahoo! Messenger account had been monitored and the discovery made that it had been used for private correspondence. He replied in writing that he had only used the account for professional purposes.

His employer then presented him with a 45-page transcript of messages he had sent and received between 5 and 13 July, including all those he had exchanged with his fiancée and brother. Mr Bărbulescu was subsequently dismissed.

He argued without success before the courts in Romania that the monitoring of the account breached domestic law and amounted to a breach of his right to respect for privacy, enshrined in Article 8 of the European Convention on Human Rights.

In rejecting his arguments on appeal, the ECHR found that it was not unreasonable for an employer to verify that workers were devoting themselves to their professional tasks during working hours. Monitoring the account was, in practice, the only means of ensuring Mr Bărbulescu’s compliance with the employer’s explicit policy. No mention had been made during the proceedings of any of the contents of the personal communications, nor was the identity of the recipients made known.

In the ECHR’s view, the level of monitoring was limited in scope and proportionate, and there was nothing to indicate that the Romanian courts had failed to strike a fair balance between Mr Bărbulescu’s right to respect for his private life and his employer’s interests.

Mr Bărbulescu appealed to the Grand Chamber of the ECHR, where the matter was considered by 17 judges, which held by a majority of 11 to six that there had been a violation of Article 8 of the Convention.

The Grand Chamber observed that the domestic courts had failed to determine, in particular, whether Mr Bărbulescu had received prior notice from his employer of the possibility that his communications might be monitored. Nor was account taken of the fact that he had not been told of the extent or the nature of the monitoring, or of the degree of intrusion into his private life and correspondence. Furthermore, they had failed to determine if there were specific reasons to justify the introduction of the monitoring, whether Mr Bărbulescu’s employer could have used measures that involved less intrusion into his private life and correspondence or whether there were safeguards in place to ensure that his communications could not be accessed by his employer without him being notified in advance of that eventuality.

In the light of these findings, the Grand Chamber found that the Romanian courts had failed to protect Mr Bărbulescu’s right to respect for his private life and correspondence and had consequently failed to strike a fair balance between his interests and those of his employer.

Says Damian McCarthy , “Where there is a ban on employees sending personal emails etc., employers should have a written policy making this clear and warning that monitoring may take place. Checks should be carried out in a proportionate manner, and only when there is a clear business reason for doing so. We can assist you in drawing up a policy tailored to the needs of your business.”

Guidance published by the Information Commissioner’s Office, ‘The Employment Practices Code’, contains specific advice on compliance with UK legislation on monitoring electronic communications. This can be found at https://ico.org.uk/media/for-organisations/documents/1064/the_employment_practices_code.pdf.

New Guidance From Acas

Just One Sexist Comment Can Have Serious Consequences!

In a warning to employers that just one discriminatory comment can have dire consequences, the Court of Appeal has upheld a six-figure compensation award to a secretary whose line manager told her that women take things more emotionally than men (BAE Systems (Operations) Limited v Konczak).

Marion Konczak began working for BAE Systems (Operations) Limited as a secretary in 1998 and was made a permanent member of staff the following year. She had complained of bullying and sexual harassment by members of her team but felt that her complaints were not being taken seriously. On 26 April 2006, after a tearful meeting with her manager, he informed her that men tend to forget things and move on more easily than women.

Mrs Konczak was absent the next day and was certified by her GP as unfit to work on account of work-related stress. She never returned to her job after that and was eventually dismissed in July 2007.

An Employment Tribunal (ET) subsequently upheld her sex discrimination claim in respect of the manager’s comment. Her complaints of unfair dismissal and victimisation were also upheld and she was awarded total damages of £360,179. That decision was later upheld by the Employment Appeal Tribunal.

In challenging the award, the company pointed out that Mrs Konczak had made 15 other, unsuccessful complaints of sex discrimination and contended that the award in respect of a single sexist comment was grossly excessive and an affront to justice. In the course of her work she had experienced numerous other adverse and stressful events that might have contributed to her illness and there was also said to be evidence that she suffered from a diagnosable mental illness even before the comment was made.

The Court accepted that the manager’s comment appeared to have been made in a clumsy attempt to express sympathy with Mrs Konczak. The ET’s finding that the words he spoke were the final straw that pushed her over the edge into mental illness may possibly have been over-generous.

However, in dismissing BAE Systems’ appeal, the Court rejected arguments that that conclusion was perverse. There was nothing inherently unjust in the ET applying the basic rule that a defendant must take the claimant as he finds them, ‘eggshell skull’ or vulnerable personality included, and having a vulnerable personality should not result in any reduction in the amount of compensation payable. The evidence was that Mrs Konczak had not consulted her doctor about her mental health at any point in the two years prior to 26 April 2006. The ET had accepted the evidence that it was the comment made by her manager that had pushed her over the edge into a diagnosable mental illness, as it was entitled to do.

The Court also noted that Mrs Konczak had suffered from mental ill-health throughout the proceedings, which had involved a total of eight tribunal hearings and lasted almost a decade.

A sexist remark of the type that was made in this case can be just as detrimental to an employee as overt harassment and discrimination. It is therefore important to take seriously any complaints made by employees and to train managers and supervisors to improve awareness of what constitutes ‘low-intensity’ sexism. Contact Damian McCarthy  for advice on any discrimination law matter.

Equal Pay – Can You Compare One Type of Job With Another?

For the purposes of equal pay legislation, can workers doing one job compare themselves with others performing an entirely different task when both are paid from a single source? In an important decision, the Employment Appeal Tribunal (EAT) has ruled that the answer to that question is ‘yes’ (Asda Stores Limited v Brierley and Others).

The case concerned about 7,000 Asda retail workers, nearly all of them women, who argued that they performed work of equal value to depot-based workers, most of them men, who worked for the same employer. The depot workers, who, unlike their retail colleagues, had the benefit of established union representation and collective bargaining agreements, were paid a higher salary. An Employment Tribunal (ET) found that the retail workers could compare themselves with the depot workers for the purposes of the former’s equal pay claims.

In rejecting Asda’s challenge to that ruling, the EAT found that the better view of the law was that Article 157 of the Treaty on the Functioning of the European Union conferred an unconditional right to equal pay both on those who carry out like work and on those who perform work of equal value. Although that issue was not entirely clear, the EAT found that it was clear enough and there was no need to refer the matter to the Court of Justice of the European Union for resolution.

The EAT also found that the fact that the retail and depot workers had their pay and conditions determined by a single source – the Executive Board was responsible for differences in pay and could, subject to the overarching control of Asda’s parent company Wal-Mart, have corrected any pay inequality – was sufficient to permit a comparison to be made. Asda’s argument that there must also be a single establishment, collective agreement or statutory framework was rejected. The better view of the law was that the comparison could be made using the established hypothetical test which enables comparisons to be made between workers who do not and never would work in the same location.

The EAT granted Asda permission to appeal to the Court of Appeal.

Says Damain, “Whilst annual reporting on the difference in pay between male and female workers is mandatory for public sector employers and for private and voluntary sector employers with 250 or more employees, all employers who have not already done so are advised to carry out a gender pay audit in order to ensure that any unjustifiable inequalities between the pay of men and women are remedied so as to reduce the risk of equal pay claims in the future.”

The Wording of Contracts is All Important – but Context Matters Too

The wording of contracts is the first port of call for judges who are asked to interpret them – but context matters too. The Court of Appeal made that point in resolving a long-running dispute that arose from the closure of a packaging factory and the loss of over 100 jobs.

The factory’s demise was marked by bitter dispute between the company that owned it, its employees and their trade union. Four workers were summarily dismissed after occupying the premises and the union ran a high-profile campaign which generated much damaging publicity for the company. After the factory ultimately closed, all 109 remaining employees were made redundant.

Following negotiations between the company and the union, a settlement was finally agreed, one of the terms of which was that the employees would receive ’90 days’ gross pay’. However, a dispute arose thereafter as to the correct interpretation of that phrase. The union argued that the sums payable should be worked out by calculating the average gross daily pay of each worker and multiplying that figure by 90. The company argued that the phrase referred to 90 days on the calendar, an approach that resulted in a less generous outcome for the employees.

Following a hearing, a judge preferred the union’s reading of the phrase. The Court, however, took the opposite view and allowed the company’s appeal. It noted that its task was simply to ask what the phrase meant in the context of the facts known to both the union and the company. When that holistic approach was taken, it was clear than an objective reader would have naturally understood that the mutual intention was to employ the calendar method of calculating the 90 days.

Employment Bullying

Have you recently experienced employment bullying and looking for an experienced professional to assist you with building a successful case? Damian McCarthy is the only employment law advocate that you will need to help you get results. With over 20 years of experience, and hundreds of cases surrounding employment bullying, Damian continues to win many of his cases and has experience in dealing with many complex and high profile cases.

Employment bullying is unacceptable but unfortunately, still very common. It can be in many different forms such as, harassment, workplace stress, workplace harassment, sexual harassment, racial harassment and victimisation. If you have felt as though you have been either victimised or mistreated by colleagues or even employers, you have legal rights to be able to take them to court. Sexual harassment is a common form of employment bullying and can consist of sexual advances by an employer in return for career benefits. If you have experienced employment bullying you won’t be able to take your case to an Employment Tribunal, you will have to make a claim in a County Court. Damian McCarthy has had experience in all types of employment law cases and if you have experienced and form of employment bullying, Damian will be able to help you build a successful case.

Damian understands that all cases are unique and should be considered on an individual basis and will offer you a completely tailored service. He will be offering you support throughout your case and work hard with you to be able to plan one that will be a success. Damian has had years of getting results with his cases and is a complete expert in working in employment laws.

If you have been a victim of employment bullying, you have a right to be able to make a claim. Damian McCarthy is the only highly experienced employment law advocate that you will need to achieve a successful case. If you would like more information on what Damian can offer you when it comes to building a case for employment bullying, why not arrange a consultation today. Please call a member of our customer service team on 020 8263 6080 who will be more than happy to help.