GDPR: Key issues for Data Controllers using Data Processors

From 25 May 2018, Data Controllers will be obliged to use only those Data Processors that can show that they are compliant with the GDPR.  Data Controllers will no longer be able to rely on contractual clauses alone to show that they are protecting personal data when outsourcing to Data Processors. Organisations will have to be far more ‘hands-on’ and to assess the compliance by way of audits and supplement that with additional data related policies and procedures. Read more about the key considerations for Data Controllers here.

The Taylor Review into modern working practices published

The basis for Matthew Taylor’s review appears to rest on the fact that the modern labour market has to be flexible but not open to exploitation by unscrupulous employers. However, there are a number of recommended legislative changes where the benefits are debatable such as using Employment Tribunals to determine the employment status of an individual. Overall, however, there appears to be no desire to throw the baby out with the bath water with the retention of zero hours’ contracts and ensuring that ‘dependent contractors’ can continue to seek maximum flexibility from the gig economy. The main thrust of the report is to ensure that it is easy to determine the employment status of an individual within a tiered structure. No doubt his report will furnish MPs with plenty of holiday reading as parliament rises for the summer recess. See the full report here.

Summertime and the living is easy

ACAS has issued some useful advice for employers trying to manage absence across the summer period as last minute holiday requests are submitted to make the most of the good weather and sporting events. There is some helpful guidance on requests to take more than two weeks, particularly for those trying to juggle care arrangements as well as ‘reasonable time off for dependants’ to manage emergencies. View their top tips here.

Case law update

Multiple choice fails discrimination test

The Government Legal Service -v- Brookes

The EAT upheld the ET’s original ruling that the requirement for a job applicant with Asperger’s syndrome to complete a multiple choice test, as a prelude to an interview and without any adjustment to the format, was discriminatory. The Government Legal Service argued that the test was designed to examine specific skills required by the job, in particular decision making, which would have been obviated if the candidate had received it in advance, and in the narrative format she requested.  The EAT ruled that adjustments could have been made at this stage of the process as multiple choice was not the only way the Service could test competencies in order to achieve the same result. When  recruiting, we would advise employers to make it clear that they are willing to make adjustments for disabled applicants.  

EAT rules on three-month gap for holiday pay

Fulton v Bear Scotland

In March this year, the Supreme Court found in favour of Mr Lock (Lock v British Gas) ruling that “results-based” commission should be taken into account when calculating statutory holiday pay for workers. The Court referred the case back to the Employment Tribunal to decide, among other issues, the reference period used to determine the level of commission that should be included within the holiday pay calculation. No doubt to the relief of most employers, the EAT has recently confirmed that workers cannot claim backdated holiday pay if there has been a gap of three months or more between successive underpayments. Please contact a member of the employment for advice on calculating back payments of holiday-related commission.

Definition of ‘public interest’ redefined

Chestertons v Nurmohamed

The Court of Appeal has upheld Mr Nurmohamed’s claim for unfair dismissal for making protected disclosures about discrepancies in the company’s accounting policies which he asserted had led to reduced earnings for him and a hundred other senior managers (he was a director of Chesterton’s Mayfair office). Chestertons appealed first to the EAT and then to the Court of Appeal on the basis the disclosures were not made in the public interest. The Court of Appeal upheld the EAT ruling stating that the disclosure was in the public interest as it related to a deliberate wrongdoing within a “very substantial and prominent business in the London property market”.

About the author

Ian Besant Consultant

Ian advises on the full range of employment law issues as well as conducting his own advocacy before the Employment Tribunal and has particular expertise in Employment Appeal Tribunal cases.