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Employment law: GDPR, the Queen's Speech and beard banning

25 July 2017 by Lydia Newman

Employment law: GDPR, the Queen's Speech and beard banning - read more

Solicitor Lydia Newman discusses data protection, the government's new legislative programme, and a firm's facial hair cutbacks.

Although the Queen’s Speech on 21 June did not contain as much as it might have had the Conservatives won a majority, it included a number of key employment law-related matters.

Data protection

The Data Protection Bill was significant, aiming to ensure the UK remains at the forefront of data protection in an age where ever-increasing amounts of data are being processed and cyber attacks rise up the boardroom agenda.

Furthermore, the General Data Protection Regulation (GDPR) comes into effect on 25 May next year and will apply directly in all EU member states. The Government has confirmed that Brexit will not affect GDPR’s implementation because the UK will be part of the EU when it comes into effect.

It is clear that organisations, perhaps more than ever, must be clear in their obligations concerning the use of data, and soon there may be significantly stiffer penalties for failing to comply with the requirements.

“It is clear that organisations, perhaps more than ever, must be clear in their obligations concerning the use of data”

The GDPR regime is much tougher than that of the Data Protection Act 1998 (DPA) and although GDPR does not come into effect for another 10 months, organisations need to act now to ensure they are compliant from the outset, and should seek specific advice.

There are a number of key differences between the DPA and GDPR:

Mandatory data breach notification

Personal data breaches, potentially including things like sending an email to an incorrect address, will in most circumstances need to be reported to the Information Commissioner promptly – usually within 72 hours. Those who miss this deadline will need to justify it.

Harsher penalties

The current maximum fine under the DPA is £500,000. This will increase to €20 million.

Higher consent standards

There is now a requirement to seek consent when processing data, including ‘explicit consent’ for certain issues such as those relating to sensitive personal data. GDPR imposes more stringent consent requirements across a broader array of data.

Changed data subject access requests

Under the DPA, data subject access requests must be complied with within 40 days, subject to various conditions. GDPR requires compliance ‘without undue delay’ and in most circumstances within one month.

This stricter requirement means that organisations should ensure that processes for responding to requests are efficient and fit for purpose, particularly where personal data is held across a variety of locations and/or formats. In addition, the £10 fee organisations may currently charge will be abolished, although there will be some circumstances where a ‘reasonable fee’ may be charged.

Diluted Queen’s Speech

The minority Government’s legislative programme for the next two years was drastically cut following the Conservative Party’s poor general election result. However, there are a number of policy proposals and statements relating to potential future employment legislation in the Queen’s Speech.

Immigration Bill

Following Brexit, it is currently proposed that freedom of movement of workers into the UK will end, making EU nationals subject to UK law. However, as reported in the press, it appears that EU nationals now living and working in the UK will not be subject to any change and will be able to apply for leave to remain once they have lived in the UK for five years.

Zero-hours contracts

The pre-election Government set up a review under Matthew Taylor, a former British policy official, aimed at ‘ensuring fairness for everyone in work’ and floating the idea of subsequent legislation.

On 11 July, the review’s report was published, recommending ‘gig economy’ workers should be distinguished from the self-employed, with associated benefits. It also argued that too many businesses rely on zero-hour contracts and other short-term staffing, and called for strategies to prevent employees being stuck at the National Living Wage.

Prime Minister Theresa May said she hoped other politicians would ‘see the importance of addressing this as an issue’.

Gender pay gap reporting and action against discrimination

The Queen’s Speech mentioned ‘further progress’ will be made to tackle these issues, although no additional detail was provided.

Overall, the proposed changes come as no surprise, having been published in the Conservative Party manifesto, although some manifesto proposals, such as extending the protection of those who are periodically mentally ill against discrimination, were not included.

Any part of the Government’s legislative programme, especially those related to employment rights which owe much to EU legislation, will be dependent upon the progress of the Great Repeal Bill, associated legislation and Brexit negotiations.

It will therefore be some time before normal service is resumed. Certainty as to what the future of employment rights legislation will hold has gone the way of strong and stable government. We will all need to keep abreast of this area.

Shared parental pay and sex discrimination

An employment tribunal has found an employer’s failure to pay enhanced shared parental pay to a man, even though it paid enhanced maternal pay for a woman, amounted to direct sex discrimination.

In the case in question, the employer entitled female employees to 14 weeks’ basic pay, followed by statutory maternity pay for the remaining 25 weeks. Male employees were entitled to two weeks’ paid paternity leave, and up to 26 weeks’ additional paternity leave which was paid at the discretion of the employer.

“This case highlights the risks in applying different regimes to males and females”

The male claimant wanted to take further leave after his two weeks’ paid paternity leave, as his wife was advised to return to work due to postnatal depression. After asking his employer, he was told that he could take shared parental leave, but would only receive statutory shared parental pay.

It was held that the employer’s denial of full pay in the circumstances of the claimant’s case amounted to less favourable treatment because of the claimant’s sex.

This highlights the risks in applying different regimes to males and females, but it is important to note that this was a first instance decision which is not binding on other employment tribunals, and that it to some extent contradicts a previous first instance decision in a different employment tribunal.

Both decisions are being appealed and it is hoped that the Employment Appeal Tribunal will clarify this issue, not least because of the risk that some organisations may simply elect to change their policies and only pay the lower statutory amounts.

New childcare scheme

Employers that allow staff to access a childcare voucher scheme, or who are planning on introducing an additional benefit in respect of childcare costs, need to be aware that the

Government plans to remove the old voucher scheme and replace it with a new one. Under the new scheme, employees will be able to claim 20% of qualifying costs per year, with the total capped at £2,000 per child. The scheme will run like an online account, meaning that if an employee pays in 80p into the scheme the Government will it top up by 20p.

The new scheme will be better for many parents, but it may be that remaining in an existing voucher scheme is better for others. Employees should be encouraged to consider their own circumstances carefully.

Beware the beard

On a lighter note, it was recently reported in The Guardian that construction company Mears is banning employees from growing beards due to health and safety concerns, namely that beards – presumably of the full and bushy variety – hinder the proper wearing of dust masks.

No doubt this is a valid concern and Mears should be applauded for seeking to safeguard their employees’ health and safety, but this does give pause for thought with regard to the potential difficulty in policing such a policy, together with the potential for challenge if a beard is necessary for medical or religious reasons, something which Mears was aware of and has accommodated.

Lydia Newman is an Employment Solicitor

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