Gordons Legal Employment Update – 16 March

General Data Protection Regulations (GDPR)

The date for the new GDPR coming into force (25 May 2018) is fast approaching? Are you ready yet?

We want to give you a flavour of what we are doing for other clients and there are a number of options.

Listed below is the suite of core documents we provide for GDPR compliance in the UK. These cover both employment-related and wider commercial documents; they are generic and, as with any contract variations, you will need to check your variation provisions. It is necessary for you to carry out the necessary review and tailor the documents accordingly.

The suite includes:

1. Guidance note (this note explains all the documents you have been provided with and how to use or amend them);
2. Data Protection Policy;
3. Letter of variation;
4. Data processing clauses (pro-controller);
5. Data processing clauses (pro-processor);
6. Privacy notices;
7. Privacy policy;
8. Employment applicant privacy policy;
9. Variation letter for existing employment contracts;
10. GDPR clauses for new employment contracts;
11. Staff privacy policy (to sit within your HR handbook or intranet);
12. Equal opportunities monitoring form; and
13. GDPR Key principles guidance note (provides a general overview of the GDPR and guidance on compliance).

If preferred, we also offer a service whereby we work with you to become GDPR compliant.

Phase one is a data audit and compliance gap analysis report which makes recommendations as to what specific policies and documents you need.

Phase two is the drafting of specific documents to meet the recommendations.

If there is anything you need, or you would simply like a second view on what you have done so far, please let us know.

Pre-Cancerous condition considered a disability

In the recent case of Lofty v Hamis t/a First Café, the Claimant worked as a café assistant at First Café.  Around August 2015, she became aware of a blemish on her cheek and sought medical advice about the mark.  Following a biopsy, her consultant dermatologist told her that she was suffering from a condition called lentigo maligna.  The Claimant’s consultant described it as a ‘pre-cancerous’ lesion.

The Claimant was signed off work due to ill health from August 2015 and underwent two operations to remove the malignant cells. These operations were successful and by mid-September, the Claimant was clear of any possible cancer. However, she continued to be signed off work for related health issues, including subsequent skin grafts and extreme anxiety.

In December, the Respondent terminated the Claimant’s employment because she had failed to attend meetings to discuss her continued absence. The Claimant brought a claim in the employment tribunal for unfair dismissal and disability discrimination.

The employment tribunal was told that the Claimant had an ‘in situ’ melanoma.  This broadly means that the cancer cells were in the top layer of her skin. Cancer Research UK (CRUK) states that in situ cancers are not cancers ‘in the true sense’ because they cannot spread to other parts of the body.  To that end, the employment tribunal found that the Claimant’s condition did not fall within Paragraph 6 of Schedule 1 of the Equality Act 2010 (EA). It dismissed the claim that she was discriminated against because she did not have cancer (which is automatically deemed to be a disability) and did not otherwise satisfy the definition of a disability. Separately, the Claimant’s claim for unfair dismissal was upheld.

The Claimant appealed this decision and argued that the Equality Act 2010 (EA) states that cancer is recognised as a disability and that the EA does not distinguish between forms/types of cancer; it requires only that the claimant has cancer. Further, the EA does not differentiate between how ‘serious’ the cancer is, what kind of treatment will be required, or the intensity of any such treatment.  Whilst the EAT conceded that a diagnosis of ‘pre-cancerous’ cells might mean something different depending upon where the cells are to be found, the EAT found that in this case, and in terms of skin cancer, the evidence meant that the Claimant had an in situ cancer and therefore the Claimant had a disability for the purposes of the EA.

Tribunal Statistics

As expected, since the abolition of Tribunal fees, the number of new claims has risen significantly.  The latest statistics have been released covering the period October to December 2017.

These show that during this period:

• There were 8,173 claims brought by a single Claimant. This represents a 90% increase on the same quarter in 2016;
• There were also 31,921 multiple claims (where two or more people bring claims arising out of the same or very similar circumstances), an increase of 467% on the same quarter in 2016. The average number of claimants per case was 58 (up from 21);
• The three most frequent claims brought were 1) unauthorised deductions from wages; 2) equal pay; and 3) unfair dismissal;
• The average time for a single claim case to be cleared was 26 weeks and, for multiple claims, 150 weeks; and
• Of claims disposed of, 31% were settled via ACAS, 33% withdrawn, 8% successful at hearing, 5% unsuccessful at hearing, 11% struck out without a hearing, 5% dismissed at a preliminary hearing and 7% for other reasons.

Comment:

The increase in claims is not surprising given that employees no longer need to pay a Tribunal fee to bring a claim.  We have seen in the past a willingness of employers to cut corners when dismissing employees or changing terms and conditions on the assumption that they are unlikely to bring a claim. The abolition of fees and resultant increase in claims is a relevant consideration when considering what procedure to follow.

People may also be surprised when looking at the statistics as to how few cases actually get to a full hearing (13%). The vast majority either settle, are withdrawn, or are struck out.

Low Pay Commission (LPC)

The LPC is an independent body that advises the Government on the national minimum wage (NMW) and national living wage (NLW).  The Government normally increases the NMW and NLW in line with the LPC’s recommendations.

The LPC opened a new consultation last week seeking views on the current rates and the rates that should apply from April 2019.  The LPC is also conducting a review of the minimum wage structure, encompassing a review of the youth rates given the increase of young people’s participation in work and education, and a review of the apprentice rate. This is in light of significant policy changes to apprenticeship policy in England.

In addition, following the publication of the Taylor Review, the consultation is also gathering views on whether to introduce a higher minimum wage rate for hours not guaranteed by an individual’s contract (as is often the case with zero hours contract workers).  The consultation will close in June 2018 with recommendations being put to the Government in October 2018.

We will, of course, report on the outcome of the consultation more fully later in the year.  In the meantime, if you would like the LPC to consider the effect that their proposals may have on your business and you would like to participate in the consultation, you can download the consultation letter which gives details on what evidence the LPC is looking for and for a list of questions to consider. The letter and further details of how to respond to the consultation, can be found here https://www.gov.uk/government/consultations/low-pay-commission-consultation-2018.

Costs awarded for work done before ET3

In the recent case of Sunuva Ltd v Martin, it got to day four of a five-day tribunal before the Respondent, Sunuva Ltd, threw in the towel and conceded that the Claimant’s dismissal for redundancy had been unfair. The respondent confessed that, since there was never any prospect of anyone other than the claimant being selected for dismissal, there had been a predetermined outcome to the redundancy selection exercise.

The tribunal found that Sunuva Ltd should have conceded unfair dismissal from the outset and that their response had never had any reasonable prospect of succeeding.  As such, the Claimant applied for costs and the employment tribunal (the ET) awarded them around £17,000, of which £4,695 specifically related to fees incurred before receipt of the ET3.

Sunuva Ltd appealed this, but the Employment Appeal Tribunal (the EAT) noted that the definition of costs in the Employment Tribunals Rules of Procedure (ET Rules) is not limited to costs incurred at a particular stage of the proceedings.  Although a party cannot get a costs order in respect of costs incurred if they have not been legally represented, under rule 76, costs may be awarded where a party has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing or the conduct of the proceedings.  Furthermore, rule 76(1)(b) specifically provides for the situation where the response had no reasonable prospect of success.

The leading case in this matter is the Court of Appeal’s judgment in McPherson v BNP Paribas, and the EAT found that even though the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013 governing costs had changed in wording, McPherson is still good law.  Therefore, the tribunal’s discretion to award costs is not limited to costs that are caused by, or attributable to, the unreasonable conduct in question, and their decision was correct.  Costs were therefore payable by the Respondent, even those occurred by the Claimant before the Respondent submitted its ET3 defence.

Comment

It is always important to carefully consider the  merits of a claim. If the defence has no prospects of success, a decision to continue to defend the claim, and particularly submitting a misleading defence, could have significant cost consequences.  We can advise whether or not a claim has a reasonable prospect of success or whether it may be more efficient to settle an issue in order to avoid unnecessary costs and penalties further down the line.

If you have any concerns about any claims you have which are currently ongoing, or you would like to talk to us about any employment issues you are currently experiencing, please feel free to contact us.