Chancellor announces get-fit regime

An extra £3 billion to prepare for Brexit over the next two years and a vision of an economy that is ‘fit for the future’ were at the heart of the Chancellor’s Autumn statement.

And despite downgrading growth and productivity forecasts, after public sector net borrowing hit £8bn in October, Philip Hammond announced a raft of new investments.  Alongside the £3bn set aside for Brexit, he plans to inject £6.3bn into the NHS and £500m to support emerging technological development, such as Artificial Intelligence.

§  Growth forecast for 2017 downgraded from 2% in March’s budget to 1.5%

Housing is also in the spotlight, with £15.3 billion new financial support for house building over the next five years, with the Government setting aside £1.2 billion to buy land and £2.7 billion for related infrastructure.  The Government also announced plans to create five new so-called ‘garden’ towns, and a headline-grabbing cut in stamp duty for first time buyers.

Stamp duty is currently paid on property purchases over £125,000, with a ‘slice’ tax where buyers pay at the relevant rate for each band, rather than a flat rate across the whole amount.  With immediate effect, stamp duty is abolished for first-time buyers on properties worth up to £300,000, or on the first £300,000 of a property worth up to £500,000.

Ben Talbot, our tax expert's view is:  “The change in stamp duty has caught most of the attention.  It’s certainly a move that will be welcomed by first time buyers, but does add yet more complexity to the application of this particular tax, where we already have different rates for second home owners and landlords.

“Buyers need to read the small print before rushing out to make an offer, as there are clear distinctions on who is eligible.  It will not apply if any property has been owned at any previous time, whether here or anywhere else in the world, and it must be the only or main home for the buyer.  In a joint purchase, everyone would need to qualify as a first-time buyer.  Buyers will need to check out the detail with their solicitor, and the benefit must be claimed when the Stamp Duty Land Tax return is made to HMRC during the purchase process.”

For the NHS, £3.5 billion of new funding has been made available for upgrading NHS buildings and improving care and a further £2.8 billion has been set aside to support improvements in A&E performance and to reducing waiting times for patients.

For individuals, the basic-rate income tax threshold will rise to £11,850 in April 2018, up from £11,501, and the higher rate threshold will rise from £45,001 to £46,350.  Alongside, the National Living Wage, paid to those aged 25 and over, will increase from £7.50 per hour to £7.83 per hour from April 2018, while the National Minimum Wage will also increase:

21 to 24 year olds	18 to 20 year olds	16 and 17 year olds	Apprentices
£7.38 per hour	£5.90 per hour	£4.20 per hour	£3.70 per hour

 

In areas focused on supporting small business, the switch to link business rates to the Consumer Price Index, instead of the Retail Price Index, has been brought forward by two years, with the Government saying businesses will save £2.3bn as a result.  There will be retrospective legislation to tackle the so-called ‘staircase’ tax, which had affected the business rates bill for many small businesses in communal offices, with those having more than one office linked by a communal lift, corridor or staircase being charged more. 

Also, the VAT threshold at which registration is required will remain at £85,000, but alongside there will be a crack-down on VAT evasion online, with greater powers to make online marketplaces responsible for the unpaid VAT of their sellers. 

Other initiatives to tackle avoidance and evasion risks will see new technology for HMRC; new global rules to force the disclosure of certain offshore structures to tax authorities; and a change to international corporate tax rules to ensure globally-operating digital companies pay a fair amount of tax.

He added:  “As with the Chancellor’s previous statements, his eye is very much on managing the economy through the coming Brexit negotiations and the country’s exit from the European Union.” 

 

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

 

 

 

Peanut Allergy Leads to Conviction of Manslaughter

Peanut allergy leads to conviction of Manslaughter

Eating establishments must be very careful to provide training and supervision to their staff as to the ingredients used in their meals.  The tragic case of R v Zaman illustrates the possible consequence of failing to do so.

Dafydd Roberts, criminal and regulatory solicitor for Gamlins Law comments that ‘the duty is firmly placed on the restaurant, café or pub to get it right; the consequence of not informing your customers of any particular ingredient to which they are allergic can be tragic to the customer and also very serious for the proprietor and management’.

R v Zaman

On 30 January 2014, Paul Wilson was found dead at his home in North Yorkshire. He had spent the afternoon drinking with a friend, before buying a takeaway meal from the Indian Garden Restaurant, Easingwold, which he took home and started to eat. Mr Wilson suffered from an allergy to peanut. The waiter from whom he had ordered the meal had specifically stated that it contained no nuts. Unfortunately, the meal contained substantial amounts of peanut, causing Mr Wilson anaphylactic shock, which ultimately led to his unfortunate death.

The Appellant Mohammed Khalique Zaman owned the restaurant. On 23 May 2016 in the Crown Court at Teesside he was found guilty of the manslaughter of Mr Wilson (together with a further six charges of contravening various food safety requirements. The Defendant was sentenced to six years’ imprisonment.

Mr Zaman later appealed against his sentence to the Court of Appeal in London.  The Appeal Court has now held that the mitigation of Mr Zaman’s hard and successful work has necessarily to be discounted by the fact that his working practices were not short of appalling, and in any event any mitigation has to be balanced against aggravating factors.

‘In our view, Mr Zaman’s negligence in this case was not just gross; his behaviour, driven by money, was appalling. Given the very serious aggravating factors, even though the Appellant was a man of good character, we are wholly unpersuaded that a sentence of six years after a trial was manifestly excessive or, indeed, excessive at all’.  The sentence therefore will stand.

 

 

 

Welsh Not’ ar ei newydd wedd?

Welsh Not’ ar ei newydd wedd?

 

Fel mae sawl un yn ymwybodol neu ddim, yn 1997, pleidleisiodd Cymru dros gael Llywodraeth ei hun ar wahan i Lywodraeth Prydain a Senedd sydd hefo pwerau cyfyngedig i greu deddfau perthnasol I Gymru yn unig. Beth yn union maen nhw’n ei wneud tu mewn i’r adeilad hwnnw sy’n debycach i fadarch na ble caiff cyfreithiau newydd eu creu yng Nghaerdydd felly?

Un o’r deddfau pwysicaf sydd wedi eu creu yno yw’r deddfau sy’n ymwneud a’r iaith Gymraeg, a’r ddeddf iaith ddiweddaraf yw Mesur Iaith 2011.

O dan Mesur Iaith 2011 mae gan unigolyn yr hawl i ddefnyddio Cymraeg yng Nghymru fel y mynno.

Anodd yw credu felly bod ffrae am yr hawl i siarad yr iaith Gymraeg wedi codi ym Mangor yr wythnos hon yn siop Sports Direct pan roddwyd nodyn i weithwyr y siop mai Saesneg yn unig oedd i’w siarad wrth weithio.

Yn wir, y ‘Welsh Not’ ar ei newydd wedd.

O safbwynt y cyfraith cyflogaeth, mae rhoi nodyn fel yr un a roddodd Sports Direct i’w gweithwyr o bosib yn anffafrio Cymry Cymraeg yn anuniongyrchol, ac maen debygol y byddai cwmni fel Sports Direct yn ceisio amddiffyn eu hunain yn hynny drwy ddweud ei fod yn ffordd o gyflawni nod dilys o gael pawb yn siarad yr un iaith am reswm penodol, er enghraifft, iechyd a diogelwch.

Ond dadl wael yw honno yn fy marn i, yn enwedig wrth ei rhoi yn y cyd-destun fod Bangor wedi ei leoli yn un o’r ardaloedd mwyaf Cymreig y byd ble mae dros 50% o’r boblogaeth yn siarad Cymraeg fel eu hiaith gyntaf. Os nad oes gan unigolyn hawl i siarad ei famiaith yma, sef iaith naturiol yr ardal, mae’n gwbl annerbyniol.

Gellir dadlau fod cwmniau fel Sports Direct yn trin dwy iaith yn y gweithle fel rhywbeth i’w chwarae yn erbyn ei gilydd. Buasai nhw’n gallu dadlau fod cael pobl sydd yn siarad Cymraeg gyda’i gilydd yn ceisio creu ‘clique’, tra mewn gwirionedd, mae pobl yn siarad Cymraeg am ei fod yn naturiol ac maen nhw’n gwneud hynny heb feddwl dwywaith am y peth.

Beth mae’r ffrae gyda Sports Direct yn ei ddangos yw bod angen cael deddf cryfach ynglyn a’r hawl i ddefnyddio’r Gymraeg yng Nghymru. Ar hyn o bryd, dydi’r mesurau iaith sydd yn gosod safonau penodol y maen rhaid i sefydliad eu cyrraedd ond yn effeithio y sector cyhoeddus. Does dim rhaid i gwmni preifat, fel Sports Direct, gyrraedd y safonau yma.

Mae’r cwmni bellach wedi ymddiheuro, ond mae blas eu geiriau “staff must speak English” yn dal yn chwerw yn eu ceg. Nid dim ond her i’r Llywodraeth ydi mynd yn erbyn agwedd cwmniau fel Sports Direct, mae’n her hefyd i bobl gyffredin fel chi a fi i ddefnyddio ein iaith bob cyfle. Daliwch ati!

Training Contract Offer to Director: 9 Years in Law

 

Training Contract offer to Director: 9 years in Law

 

 

Like it or loath it, Facebook does have its moments. This morning I had an ‘on this day’ reminder, that on this day 9 years ago I was offered a Training Contract. The offer of my Training Contract is one of the memories, alongside my graduation and  my wedding day, that I will never forget.

 

I was 21, had graduated  from the University of Cardiff in the July 2008 and had completed all 3 of my summer vacation schemes. It was a Friday and I had a car full of possessions that had been from University, to my mother’s house in Abersoch, where I would be spending my summer before moving to Chester to start my LPC.

 

I pulled up at the house, my Nissan Micra full to the brim of the useless stuff university students hoard, as I got out the car my phone rang. It was the HR manager from Hammonds (now Squire Patton Boggs), I instantly started to shake, my throat went dry. I had heard during my vac scheme of ‘the call’ that would come before paper offers and rejections went out.

 

I could hear the HR manager smiling on the phone as she told me that they were offering me a Training Contract. I could hardly get the words out to thank her, immediately bursting into tears and falling to my knees on my mums driveway.

 

For someone not prone to dramatics, let me give you some context. I along with hundreds of other law students pinning their hopes on a career in law, had spent the time between studying , on vacation schemes, drafting application forms and interviewing. Taking on roles of responsibility (Law Society President), sports teams and extracurricular activities. Polishing my CV and hounding firms for an opportunity to prove myself. Finally, having completed my degree and being accepted at the College of Law (now the University of Law) in Chester, I had just signed an enormous loan agreement to fund my LPC. An astonishing gamble when I had no means of paying it off when the course was completed, without a Training Contract.

 

All that worry, strain and emotional (and real) investment finally ended with one phone call.

Was it all worth it? Yes. Do I look back at my reaction to that phone call and think I was over dramatic? No! The shine will never come off that moment, when I felt a real sense of achievement and payoff. Competition for Training Contracts was at an all-time level of ferocity, 2008 being the year of the recession when recruitment was vastly cut back in law firms. I am forever grateful for Hammonds for the opportunities they gave me.

 

So what happened next? After completion of my LPC, like many trainees my contract was deferred a year to 2011. I spent the next year travelling and working, working out of Mumbai, Milan and Ireland before taking up a job doing marketing and photography for a magazine. I spent the final 12 months before my TC started working as a paralegal for Hammonds in their professional negligence department.

 

After 4 seats, one of which was spent on client secondment I qualified into Employment and took a position as an NQ in North Wales at Gamlins Law. At the time having met my husband in Abersoch and being a volunteer crew on the RNLI, as much as I loved working in cities, with  the shopping restaurants and city buzz, my heart was on the beach and in the sea.

 

The adjustment from Global Law firm to country firm was surprisingly easy, my job satisfaction is enormous and I will be forever grateful for the fantastic level of training, support and knowledge that I was able to call on  that I had experienced during my Training Contract.

 

Now 4 years qualified I won the Law Society Junior Lawyer of the Year in 2016, and I was recently promoted to Director at Gamlins. The quality of work is excellent and I truly enjoy what I do. I continue to volunteer for the RNLI, as a crew member in Abersoch, where I am now a trainee Helmsman, spending my evenings and weekends on call, as well as days when I work from home.  

 

Looking back at the last 9 years, I feel I have learnt a lot, it being a strange position to now be in to be supervising trainees and assisting with recruitment. It has made me think hard about the lessons I learnt and advice given to me on the way:

 

1.      If you have a gap year, whether intentional or not, make it count. Do something useful and different. Recruiters hear about ‘when I went to Australia’ more times than they can count! I learnt solid commercial skills and got real work experience working in different and unusual environments

2.      Vacation Schemes are so important. If you can’t get one think outside the box, after first year I spent a week working in house at The Times. It wasn’t an ‘official’ placement, but the work was interesting and it gave me something to talk about that was a bit different at interview

3.      Make connections and don’t fall out with anybody. I am still in touch with a number of my supervisors from Squires and people I met on secondment. The legal world is a small world and often you may need their advice and counsel in years to come.

4.      Be competitive, but pay attention to number 3. There is a fine balance, trust me! Don’t sulk if you don’t get the seat you want, take every opportunity and make something of it.

5.      Don’t just take work from your supervisors, go to them for feedback, soak up everything they have to say. My supervisors at Squire were passionate about what they did and my aim was to enjoy work as much as they did.

6.      Take risks. I now do interviews for BBC Radio Wales when called upon for Employment Law related content, I was terrified the first time and now it’s actually enjoyable

7.      Don’t believe a career in law means you have to give up a passion for travelling. Use your annual leave wisely, save your money and give yourself the most incredible experiences whilst doing a job you love.

8.      You will make mistakes, there will be times all you want to do is go home or take off round the world. The world will not end if you make a mistake, mistakes are expected. Learn from them and move on.

9.      You don’t know everything when you qualify. The only difference between being a trainee and an NQ is that you are a day older. Depending on where you work it might mean lots of responsibility and independence, or that you are still heavily supervised. You did not become an expert overnight when your TC ended. Use your support networks, go for help, get things checked.

10.  Enjoy the job. If you hate it you need to work out why, and whether it really is for you. You might have invested in it heavily but it shouldn’t mean a life sentence if it is not for you. It is hard, you will work long hours and it can be emotionally tough, but the satisfaction of doing the job well for your clients is fantastic, don’t lose sight of that.  

Hay Fever Havoc

When the idea for this blog post came to me, it struck me how very British my line of thinking was. We complain about the weather for roughly 11.5 months of the year, because of the cold, the wind and the incessant rain. Finally, we are granted a couple of days of sunshine and  we are still not happy with our weather, the Internet being flooded with memes demonstrating how us Brits are totally unequipped and unwilling to suffer any mildly hot weather.

Those who can cope emigrated to the Middle East, Oz and California many years ago.

 

So, putting solidly British suggestions to one side (undergarments in the freezer, feet in cold water and rushing out to buy fans), the warm weather can present problems for businesses, when the pollen is high, hay fever sufferers can be heard for miles.

 

Sniffing, coughing and generally gasping for air in the office, or an increase in sick days, it can be a nightmare for employers. Sick days currently cost businesses roughly £554 per employee per year. For a business with a 250 headcount that is over £135,000 per year.

My desk is currently overflowing with every remedy I can possibly get my hands on, having been hit particularly hard over the last couple of days, I have even found myself praying for rain (very British). At least the rain would give me something to complain about other than my pounding head, streaming eyes, scratchy throat and constant cough and sneezing fits. I know for a fact I am irritating my colleague in the next office beyond belief.

 

So what is an employer to do? Hay fever is unlikely to meet the criteria for being a disability, so there would be no obligation for reasonably adjustments.

 

Is it an easy get out for employees for when the sun comes out, if hay fever becomes an easy way to have a day off? All the usual absence management policies can come into play here, discretionary company sick pay and waiting days are all useful tools. On a human level, given the severity some people suffer with the ailment, some sort of flexibility or sympathy would go a long way for employee relations. There are issues with many of the medications causing drowsiness and general low productivity levels when someone is feeling quite so poorly.

In terms of my presentation for work, my ability to wear make-up has been completely eradicated and I generally look as though I have been crying for a fortnight. Not a great look when clients are likely to visibly recoil at the sight of my streaming eyes and reach for the antibacterial hand wash after a handshake.

I am however still generally capable of wearing high heels, thank goodness (apologies Lawyer Joke! http://gamlinsemploymentlaw.blogspot.co.uk/2016/05/high-heel-gate.html  )

Good intentions not enough in wage calculations

Good intentions not enough in wage calculations 

 

Accurate calculations of the National Minimum Wage continue to cause headaches for employers, with an employment tribunal acknowledging the complexity, saying there is no single key to unlock every case.

Recently, unintentional underpayments in staff pay packets have affected major retailers like John Lewis and Tesco, while others have been waiting for an employment tribunal decision on when sleeping night shift staff are eligible for the National Minimum Wage (NMW). 

For John Lewis, a staff-friendly policy of aggregated wages to provide regular monthly income has resulted in the company having to provision £36m for underpayments over a six-year period, despite most under-payments being technical, rather than actual.   Staff wages were smoothed out over the year so they received the same amount each month, rather than being paid for the exact hours worked.  The problem arose when individuals worked extra hours in a month and the aggregate monthly payment was less than the payment due for the hours worked under the NMW Regulations. 

Argos and Tesco have made similar payroll mistakes.  Tesco is having to compensate 14,000 staff at a cost of £10m for employees who had made salary contributions to pensions, childcare and other schemes which resulted in their pay falling below the National Living Wage level.  Tesco has blamed its payroll software for the error, but for many employers the difficulty lies in correctly interpreting the NMW Regulations.

One such thorny area is payment for employees who sleep overnight in the workplace or are on call.  Previously, such workers were often paid a flat rate for when they were sleeping and their normal hourly rate when they were required to attend to their duties.  This approach was challenged  on the basis that it did not comply with the NMW Regulations,  and three such cases  were recently heard together by the Employment Appeal Tribunal:  Focus Care Agency Ltd v Roberts, Frudd v The Partington Group Ltd and Royal Mencap Society v Tomlinson-Blake.

But for employers hoping for certainty on the issue there has been frustration, with the Tribunal saying that there is no ‘bright line’ and that businesses must conduct a ‘multifactorial evaluation’.  Their findings highlighted four key factors.

1.       The reason for engaging the worker – if an employee is on site to comply with a regulatory or contractual obligation, then the individual is more likely to be classed as working throughout their whole shift, even if they are asleep or with nothing to do.

2.       Restrictions on the worker’s activities – if a worker would be disciplined for failing to remain on stand-by, for example by leaving the premises, then the NMW is more likely to apply than in situations where someone is able to come and go as they please.

3.       The degree of responsibility – if a worker is required to keep a listening ear and respond, such as a care worker, they are more likely to be treated as ‘working’ than someone who is at home on-call.

4.       The immediacy of the requirement to provide services – this includes both the speed and the level of responsibility of a worker.  If they are the one who will decide whether to intervene and then take the action, they are more likely to be categorised as working than someone who is woken and instructed by the responsible member of staff.

“The Tribunal’s decision highlights just how tricky this area of the law can be, but compliance is a serious business,” said Employment Law expert Elissa Thursfield.  “It’s sometimes difficult to understand what’s right and what’s wrong, and borderline cases will be difficult to decide, but if there’s any doubt it pays to investigate further as getting it wrong may mean a company faces claims for back-pay, which can go back six years.  As well as the financial costs, there may be enforcement action by HMRC, and reputational damage.”

 

The National Living Wage is a premium tier of the National Minimum Wage for eligible workers aged over 25.  For those eligible workers aged under 25, there are further categories of age-related rates.  

Year	25 and over	21 to 24	18 to 20	Under 18	Apprentice
April 2017	£7.50	£7.05	£5.60	£4.05	£3.50

 

Although given as hourly rates, the NMW Regulations apply to any eligible worker, whether or not they are paid by the hour and calculations must be made according to the payment basis.  For example, someone paid annually or by piece-work can use a formula to work out the equivalent hourly rate and check if they’re being paid the right amount. 

 

 

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues

Allegations of wrongdoing in the workplace

Our professional regulatory team provides advice and representation to practitioners in all areas of regulatory practice.

If your trade or profession is regulated by a professional body and you are the subject of a complaint then we can help you.

We can assist you with the initial investigation process to include negotiation with your regulator and independent investigation where appropriate.

We can represent your interests before fitness to practice panels and professional conduct committees.

We are also experienced in representing professional practitioners facing criminal prosecutions including allegations of fraudulent activities, assault and religious/racial intolerance within the work place.

We are aware that any allegations involving your profession can be extremely distressing and we will work very hard to minimise anxiety and to bring the matter to a conclusion as smoothly and quickly as possible.

If you wish to speak to one of our experts without obligation contact us immediately. We provide advice around the clock and pride ourselves as being the leading providers of legal services in the region.

Small suppliers set to get intel on big company payment performance

Small suppliers set to get intel on big company payment performance  

 

New regulations designed to help small businesses get paid on time came into force this month, with a requirement for larger companies to publish information about how long they take to pay suppliers. 

The requirement affects companies and LLPs who exceed two or more of the qualifying thresholds at the date of their last two balance sheets.  The thresholds are based on the definition of ‘medium-sized’ under the Companies Act 2006 and are an annual turnover of £36 million, a balance sheet total of £18 million and an average of 250 employees during the year. 

From 6 April 2017, those qualifying will be required to publish information on a Government website about their payment practices and policies and how they have performed against them, including the average time taken to pay suppliers, and to update the information every six months. 

Late payment is recognised as causing serious financial and administrative problems for businesses and the aim of the new regulations is to tackle concerns about adverse treatment of smaller suppliers by larger, more powerful customers, through increased transparency and scrutiny.  The Reporting on Payment Practices and Performance Regulations 2017 came about as part of the Small Business Enterprise and Employment Act 2015, and applies to public, private and listed companies and to limited liability partnerships through a separate set of regulations. 

Businesses will not be required to report in their first financial year and those in their second year will be expected to check the requirements against their single, first financial year. For parent companies and LLPs, reporting will be required if the aggregate group figures exceed the thresholds.  Any company or LLP within a group that satisfies the test individually, will need to report separately on its own payment practices and performance. 

Explained Sion Williams of Gamlins Law:   "It’s important that larger businesses check  whether they are required to report under the regulations, and must then keep an eye on the thresholds as these will be updated over time.   Smaller businesses can ask new customers whether they are required to report and, if they are, check out payment performance as part of their pre-contract checks”.

He added: “It’s worth remembering that there are other existing measures already available to tackle late payment, including the option of claiming interest and recovery charges, and it’s worth checking that existing contract terms don’t undermine those rights with something less advantageous.”

Under the Late Payment of Commercial Debts (Interest) Act 1998 commercial businesses are expected to pay their supplier invoices within 30 days, unless they have both agreed a longer time limit of no more than 60 days.   Alongside, all public bodies are required to pay suppliers within 30 days, except for some specific or devolved activities.

Statutory interest can be applied, together with a fixed sum of between £40 and £100, depending on the sum owed, for the cost of recovering the late commercial payment.  The interest is currently set at 8% plus the Bank of England base rate, and starts to run automatically at 30 days from the latest date of either receiving the supplier's invoice, or of receiving or accepting the goods or services.  You can agree a longer period for payment, but if it’s more than 60 days it must be fair to both businesses.  And unless a ‘reasonable’ longer period has been agreed, any purchaser must confirm that goods or services conform with the contract within 30 days. 

Late payment legislation does not have to be referenced in trading terms, as it will apply automatically in any commercial relationship, unless an alternative process has been set out in the contract. 

This information is not intended as legal advice

Data Protection in the UK: out with the old, in with the new.

Data Protection in the UK: out with the old, in with the new. 

Big changes are afoot on the law relating to data regulation in the EU.  Is your business ready to ensure compliance and avoid the hefty penalties?

Employers across the EU are being urged to take steps now to prepare for the 25^th May 2018 when the new General Data Protection Regulation (GDPR) will be coming into force, replacing the current Data Protection Directive.  Although Brexit is looming, the government has confirmed that the new legislation will apply in the UK as it will still be a member of the EU at the time of implementation.

Right now, the current Data Protection Directive is incorporated in the UK by the Data Protection Act 1998 and many of the principles will remain the same.  However, there are a number of new and complex obligations on employers that should be understood and implemented in businesses now in order to ensure compliance in time for May 2018:

1              Restricting the use of consent as a justification for processing data

Consent is no longer enough justification for processing data and, in particular, employee data.  The GDPR states that consent must be ‘freely given, specific, informed and unambiguous’.  It must also be given by consent or affirmative action.  If consent is given through a written declaration, the request for consent must be clearly distinguishable from other matters and easy to understand. 

What this requirements means for employers is that, particularly in relation to contracts of employment, generic consents will no longer be a valid justification for processing employee’s legal data. 

Employers should start reviewing their existing documents to see whether consent is given in line with the new requirements, or whether they can show that they have a legitimate interest in processing the data that is not overridden by the interests of the data subject.

2              Demonstrating compliance through the documentation of data processing activities

With the GDPR’s new focus on accountability, businesses will have to ‘demonstrate’ compliance with the principles of personal data.  Employers should consider adopting a GDPR compliance programme to implement and monitor their data processing activities.

3              Adopting organisational measures for data protection such as policies and practices

Employers should adopt easily accessible and clear policies and procedures in relation to data protection.  This will ensure compliance with the GDPR requirement that information provided must be in clear and plain language.

4              Providing more information to employees and job applicants on the purpose and legal grounds for collecting their data, and their rights in relation to their personal data

Transparency is key.  Employers should provide employees and job applications with full information in respect of their personal data.  They should also be well versed in relation to their rights.  If employers have clear policies and procedures in place to tackle the same, then there will not be an issue.

It is especially important for employers to prepare for the new requirements as the GDPR has created a new enforcement system, with significantly higher maximum penalties than at present.  In some circumstances, a breach can result in a maximum fine of €20 million or 4% of an undertaking’s worldwide annual turnover, whichever is higher. 

 

 

 

Hannah Jones

When tweets become twibels

When tweets become twibels….

Facing up to the social media challenge for business

Every business using social media should get to grips with publishing law and advertising regulations if they are to avoid reputation-damaging incidents. 

The reminder follows the news that opinion columnist Katie Hopkins has been refused leave to appeal against a recent High Court libel verdict, where she was found to have published defamatory tweets, or what’s been coined ‘twibel’. 

Anyone using social media is a publisher, putting information out into the public domain, but unlike newspapers and book publishers, most businesses don’t have a good understanding of publishing law and how to avoid breaching it.  Similarly, many businesses are not considering how their social media posts may breach advertising regulations, as the boundaries between paid-for advertising and other forms of communication become more blurred. 

It’s the sort of confusion that led to a complaint being made that a tweet sent from the account of England football captain Wayne Rooney, as part of his sponsorship by Nike (UK), was not clearly marked as a marketing communication.  The tweet read: "The pitches change. The killer instinct doesn't. Own the turf, anywhere. @NikeFootball #myground pic.twitter.com/22jrPwdgC1". Although in that case the Advertising Standards Authority found that Nike (UK) had not breached the code of conduct, saying the tweet was obviously identifiable as a Nike marketing communication, it may not always be clear to businesses where the line is drawn. 

For Katie Hopkins, the tweets she posted that were found to be defamatory implied that prominent poverty campaigner and writer Jack Monroe had defaced a war memorial, in a case of mistaken identity.  Monroe offered her the chance to publicly apologise or face legal action, but Hopkins refused.  When the case reached the High Court, the tweets were found to have caused ‘serious’ harm to Monroe’s reputation.  Hopkins must pay damages of £24000 to Monroe, together with Monroe’s legal costs. 

In making the judgement, the court had to determine whether the tweets met the requirement for harm that is set out in the Defamation Act 2013 and experts say the ruling is the most important case to date involving libel on social media.

"Controlling social media content is a huge issue for business,” said employment and social media expert Elissa Thursfield  of Gamlins Law.  “It’s a fast-moving arena and often posts, tweets, retweets and comments are the subject of instant decision-making.  When careful reflection isn’t part of the equation, it’s not surprising that it can lead to problems.  It is important that social media policies are kept under constant review and that everyone understands the boundaries they are operating within, through both the company’s marketing strategy and their terms of employment.

“Staff could also learn from the 26-point guide on how to use Twitter, published by the High Court as part of its official ruling in the Hopkins case, which provides a summary of how the platform works. It makes for useful reading, even for those who think themselves experts, as a reminder of who will receive postings when tweeting, re-tweeting or replying.” 

She  added:  "It’s important to have a good crisis management plan in place as well, so that if the worst happens and a mistake is made, then everyone knows what to do if something inappropriate has been posted.  Taking swift action with a public retraction is a good start and will demonstrate a willingness to tackle the problem.  In the case of Katie Hopkins and her mistaken tweet about Jack Monroe, if she had been quick to correct herself and made a public apology that reached the original audience of her tweets, it’s quite likely the case would not have passed the necessary ‘serious harm’ test for defamation and the case may never have gone to court.”  

Employers can ban headscarves at work

Employers will be able to ban Muslim staff from wearing headscarves at work, the European Court of Justice has ruled.

 

According to reports, the Court said that companies are able to ban the 'visible' wearing of any political, philosophical or religious sign.

 

Employers need to however apply any ban with caution, if a ban was only applied to Muslim members of staff and no other staff members wearing 'visible' signs, it could constitute direct discrimination. This would mean therefore that if a company were to ban the headscarf, a similar stance would need to be taken for example with a Christian cross, if visible.

 

Employers would also need to have a policy in place prohibiting the wearing of religious symbols, prior to asking any member of staff to remove an item. Such a request could not therefore be reactive, for example to a customer complaint.

 

The case follows a ruling in a case brought by two women from France and Belgium who were dismissed for failing to remove their headscarves.

 

Complex challenges for employers in the year ahead

Complex challenges for employers in the year ahead

 

Constant changes and increasing complexity have helped make employment law a frontline challenge for business and this year looks set to continue the trend. 

The first weeks of January saw Maggie Dewhurst, a bike courier with City Sprint, winning her case to be treated as a worker, rather than a self-employed contractor. The high-profile case follows hard on the heels of the similar ruling given late last year in the action brought by Uber drivers, which the company has said it will appeal.

A worker may be entitled to certain rights such as the national living wage, paid holiday and sick leave, where a contractor would not.  An employee may also be a ‘worker’, but with extra employment rights and responsibilities. 

“The decision in the case of Maggie Dewhurst vs City Sprint will apply only to her personally, but it puts such working practices under the spotlight, especially in the so-called ‘gig economy’, where people are employed by companies on a job-by-job basis,” explained employment law expert  Elissa Thursfield of Gamlins Law.  “But the issues involved can equally apply in many other sectors where companies may be trying to optimise their staffing, if they do not realise the distinctions between an employee, a worker and a self-employed contractor. A number of cases are now working their way through the courts and I expect we’ll see this topic in the headlines throughout 2017.” 

Alongside, the Government is moving to crack down on unscrupulous employers to stamp out exploitation in the workplace, after several companies hit the headlines for poor practices in recent months, including reports that workers at Sports Direct were receiving less than the national minimum wage and being subjected to humiliating working practices.  The new Labour Market Enforcement body will take the lead in this, headed by Prof Sir David Metcalf, a founder of the Low Pay Commission. 

Together with other employment legislation already announced for introduction this year, bringing further significant changes and new requirements, businesses need to make sure they are up to date with their practices and terms of employment.  The up and coming legislation includes:

Gender pay gap reporting:   The Equality Act 2010 (Gender Pay Gap Information) Regulations are set to come into force on 6 April 2017 meaning all private sector organisations with at least 250 employees must publish details of their gender pay gap, for both basic pay and any bonus payments.  The first reporting will be due no later than 4 April 2018, and annually after that.  This could be a raw topic for supermarket employer Asda who recently lost an equal pay claim brought by women workers, who claimed their work was equal to male warehouse workers.  In the preliminary judgement, the women won their case but Asda are expected to appeal.  

Apprentice levy:  Also due on 6 April is the annual apprenticeship levy, under the Finance Act 2016 (part 6).  In a Robin Hood style approach, the levy must be paid by all private and public sector employers in the UK with a pay bill of £3m and above. It will be charged at the rate of 0.5% on their total pay bill, with an annual allowance of 15% to offset against the levy payment. The income will be used to fund a new system of post-16 apprenticeships, which will be available to those employers falling below the £3m threshold. 

Salary sacrifice schemes:  As announced in the Autumn Statement, the Finance Bill 2017 will set out changes to the tax status of salary sacrifice benefits with effect from April 2017.  The changes will see an end to the tax saving benefits of most salary sacrifice schemes, which will become subject to the same taxation as cash income. Any arrangements in place before 6 April 2017 will be protected for one year, or four years in the case of cars, accommodation or school fees.  The extension will apply until the arrangement ends, is renewed or otherwise modified.  Remaining exempt from tax will be pensions and related advice, cycle-to-work and ultra-low emission cars. 

Tax-free childcare:  Also retaining its taxation benefits will be existing employer-supported childcare voucher schemes.  These can remain open to new entrants until April 2018 with childcare vouchers and all associated tax savings available for the life of the scheme.  However, the Government is expected to launch a new, alternative tax-free childcare scheme, which will allow working families satisfying a minimum/maximum income requirement to claim 20% of childcare costs for children under 12, or under 17 where children have a disability, capped at £2,000 per year.  The two schemes can run in tandem, but once a new scheme has been established no new employees will be allowed to join an old-style childcare voucher scheme and still receive the tax benefits. 

Holiday pay:  An appeal by British Gas to the Supreme Court will challenge last year’s ruling by the Court of Appeal that holiday pay should be ‘normal pay’ and include contractual results-based commission. The appeal is expected to be heard in March 2017 but in the meantime the ruling stands and employers need to look at irregular payments made to employees and establish which are to be included within ‘normal’ pay and so be included in any calculation for holiday pay. 

She added: “The complexity around holiday pay calculations means employers are likely to need advice to get it right.  It’s just one example of how employment law continues to pose challenges for business, and the year ahead is certainly no exception.  It’s important to get ahead of the deadlines and make sure you’re addressing the changes across all aspects of the business. 

“And while European law is behind some of the upcoming legislation or court rulings, it cannot be ignored on the basis that we are starting the process of withdrawing from the European Union, whatever style of Brexit is adopted by the Government.  For now, everything stands.” 

 

This is not legal advice; it is intended to provide information of general interest about current legal issues