Don’t Stress over GDPR

Everywhere you look, you can’t miss the initials GDPR. Social media is full of discussions, I could spend all day every day attending “GDPR Training Course” “GDPR seminars” and then buy lots of compliance guides and products. After all – if I don’t comply the Information Commissioner is going to come in and fine me £20m.

Consequently, businesses are being sent into panic mode, running around trying to deal with misleading advice “You have to do X” “You can’t do that anymore…”

Just in case you have been in a cave somewhere, GDPR stands for the “General Data Protection Regulation” and is a major EU update to Data Protection laws. When it comes into force in the UK, in 6 weeks’ time, it will be known as the Data Protection Act 2018 and will replace the 1998 Act.

If you currently comply with Data Protection legislation, then the new Act simply requires you to tweak a few procedures and approaches. For most small businesses, it won’t require radical reform of your systems.

Most employment data is held for either a legal reason (e.g. proof of eligibility to work in the UK) or for a legitimate business reason (e.g. bank details held to pay people). People don’t need to give consent for you to hold this.

The major changes from an employment perspective are that:

·         If an individual requests a copy of their data, you can no longer charge for this and have to respond faster (30 days rather than 40)

·         You must tell employees if any of their data is passed to a third party (e.g. a payroll bureau) or outside the EU (for example, if you are part of a larger organisation)

·         You must also tell people if you use automated systems to make decisions (for example if you shortlist candidates for a job using software)

·         You must only use data for the purpose it is supplied for (e.g. you can’t hang on to a CV for an unsuccessful job candidate on the off chance that they might be suitable for a different vacancy)

You should also have very clear rules about how long you retain individual data for after an employee has left (although you should have these already!)

This isn’t to say that some types of business in certain sectors, particularly those that directly market to individuals, won’t have a great deal to do (which is why you will find that you are suddenly be asked to confirm if you still want to receive those marketing emails that you hadn’t realised you’d signed up for). And of course, if you weren’t following the current data protection legislation then you may suddenly need to get you house in order. But for most smaller businesses, the advice is

Generally, Don’t Panic, Review!

 

Plumbing the depths of Employment Law

Post updated 13 June 2018 to reflect the Supreme Court decision

The case of Pimlico Plumbers v Smith  – which has been decided today by the Supreme Court – has attracted a lot of publicity for the hitherto obscure and anoraky topic of Employment Status. As is always the case, much of the media coverage is misinformed and the case is being ‘spun’ by the various parties. Since small businesses need to be clear about their employment responsibilities, it may be helpful to explain the differences.

An employee is someone who works for you under a contract of employment. Most people in most companies are employees, which is why the issue of status doesn’t arise in most organisations. Employees have a number of legal rights (e.g. unfair dismissal, notice periods, right to a redundancy payment etc). Employers pay them through a payroll after deducting tax and national insurance
Self-employed individuals are those who work on their own account – they may do work for a variety of clients (both individuals and companies). They invoice their clients and are responsible for their own tax affairs, and they can make a  profit or a loss. They have very few rights (mainly around health and safety and some limited discrimination rights).

All employees are ‘workers’. But there are also others who can be classified as “workers”. They are those who work for you under some form of agreement where they are required to undertake the work personally. Workers are entitled to fewer rights than an employee but they do still qualify for things like paid holidays, sick pay, and minimum wage. It is this group that form the basis of both the Pimlico Plumbers case and the current debate about Uber taxi drivers, Deliveroo cyclists, couriers for City Sprint etc.

To establish employment status, there are a set of legal tests that have been established. For example, who controls where and how the work is done? Can the work be passed to a ‘substitute’? Is the person ‘integrated’ into the business? Is there an expectation that work is provided and if so that the person will do it? And most importantly, even if there is a written agreement saying one thing, if what actually happens is different then this needs to be taken into account.
And because of an oddity of law, it’s perfectly possible to be a worker for the purpose of employment rights and be self-employed for tax purposes. This is what causes many of the disputes.

In Pimlico Plumbers case, the Company and Mr Smith signed an agreement that he was a self-employed plumber. It saved the company money in Employers’ National insurance and administration time, and Mr Smith paid less tax. Mr Smith however was expected to wear a Pimlico Plumbers uniform, drove to his jobs in a Pimlico van and was required to undertake a certain number of hours per week for the company. Nor could he advertise his own personal plumbing services to Pimlico’s clients. Everyone seemed happy with this arrangement until Mr Smith had a heart attack, had his agreement with Pimlico terminated and received no sick pay.
The courts so far have applied the tests based on the facts presented to them, and concluded that Mr Smith was not an employee, but that he was a worker. The Supreme Court has now confirmed this.

But the real lessons for small businesses are that:
• Trying to fiddle or fudge employment status can come back to bite you
• If the reality of the situation changes over time you need to review your agreements
• Think about why you want someone to work for you and be clear about the intended nature of your working relationship before you start the selection process.

If you want to know more about how employment law affects small businesses, in a simple, easy to read book, just click here

There but for the Gracie of God…

 

About 6 months ago, I wrote this post about BBC pay and the gender pay gap. Rather naively, I stated in that post “I can’t believe a major national organisation with extensive HR and legal resources would expose itself to such a reputational and financial risk” by breaching equal pay legislation. It appears I was wrong.

As has been widely reported, the BBC’s China Editor, Carrie Gracie, resigned at the weekend, citing the corporation’s failure to pay her at the same level as male colleagues doing the same job in different parts of the world. Reading her public post explaining her reasons for resignation, it appears that she does have the potential for a successful claim.

Equal Pay is either pretty straightforward – men and women doing the same job must be paid the same* – or complex – men and women doing jobs of equivalent value must be paid the same (this is complex because working out the “equivalent value” can be difficult and time-consuming to establish).

Ms Gracie’s case however seems to fall into the former category. As I understand it, there are a group of 4 senior journalists within the BBC who undertake editor roles for distinct regions of the world (Europe, North America, China, Middle East).  So essentially there are 4 people who are doing the ‘same’ job – two of whom are men and two women.

Can the BBC justify a salary difference? It could, if it was able to show that the difference was due to

a)       Work Performance

b)      Geography

c)       Market forces

d)      Special duties or responsibilities

e)      Greater skill and experience

Obviously, I can’t comment in any detail on most of those areas. But given the individuals in the 4 editor roles are long serving experienced BBC journalists, it would seem that reasons a), c) and e) are unlikely.  Reason d) would seem to apply equally to all 4 – all of them undertake other BBC jobs (presenting on TV or radio etc), which leaves us with simply geography as the reason.

On that basis, I could probably argue a case that the Middle East editor should be paid higher (due to the need to visit war zones/higher degree of personal risk etc) and it might be justifiable to pay slightly differently if the cost of living were significantly different between countries/regions.  But otherwise I’m struggling to see how the BBC will justify a difference in salary.

We’ll see how Ms Gracie’s claim does over time. But the message for my clients and other readers is that you should be paying men and women the same* for doing the same job and differences can only be justified for one of the reasons highlighted. A claim may not be as publicly damaging to your organisation but it has the potential to be very expensive.

(*To be clear, the same can mean within the same pay scale/band, not necessarily an identical salary)

 

 

Sexual Harassment in the Workplace

With increasing numbers of accusations of sexual harassment (and worse) being made, and several high profile figures seeing their reputation and career vanish overnight, many smaller businesses are concerned how they should deal with an allegation if it should occur in their own organisation.

I was recently asked to contribute an article to Arts Professional magazine on how to handle claims of sexual harassment. Although it’s written specifically for arts organisations, the points are generally applicable to all small organisations, whatever their sector. You can find it here

I’d welcome any comments or queries when you’ve read it – if you have a situation where you need specific advice please get in touch

ET Fees – what should small organisations do?

You’ve probably seen today’s news that the Supreme Court has ruled that the current Employment Tribunal fees system is unlawful, primarily because it denies individuals the ability to exercise the rights granted to them by Parliament. If you run a small business or charity, you may wonder what this means for you. Here are some key tips

  1. Don’t panic – today’s ruling simply restores the legal situation to what it was in 2013.
  2. Treat Employees legally and fairly – you should be doing this anyway, most employers already do. If you’re not sure exactly what you should be doing, my posts here and here may help
  3. If you do get a claim from someone relating to a past dismissal (or other issue), alleging they were unable to make a claim at the time due to the fees, seek advice immediately. 
  4. Don’t believe the hysterical nonsense in the Daily Mail (actually, that’s true of most employment law issues)
  5. See point 2