GDPR: countdown to May 2018

The ICO has published a raft of useful information and guidance on its website  to help organisations prepare for the new data protection regulation which comes into force on 25 May 2018, including a 12-step checklist against which you can check your progress. The key points are:

  • Identify what personal/sensitive data you hold and where
  • Manage how this data is obtained, used and accessed
  • Protect the data by establishing security controls to prevent breaches
  • Fulfil reporting requirements through good record keeping

Failing to comply with the regulation could lead to a fine of up to €20m or 4% of turnover, whichever is larger. Our data protection team can audit your current data protection regime and advise you on how to comply.

Asda goes to Court of Appeal over pay inequality

The EAT has just ruled that Asda employees working in their retail stores can compare their pay rates with those working in the store’s distribution centre, having rejected all ten grounds on which Asda had appealed the original tribunal ruling. Some commentators are describing this as a gender pay battle as most of the retail workers are female and most of those employed in distribution are men, a claim understandably dismissed by Asda. Asda has been given leave to appeal. Various retailers will be watching this case closely and we will report on the outcome in due course.

Back to work

As a new school term starts, employees may be considering requesting flexible working. If so, employers must bear in mind the following:

  • Employees must apply in writing, date the application, state that it is made under the statutory procedure, specify the change that the employee is seeking and when they wish the change to take place. Explain what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with, and state whether or not they have applied previously and the date they did so (they can only make one a request every 12 months).
  • Employers must consider, and decide on, all applications within three months and must only refuse the request on one or more of the eight statutory grounds.

Government consultation on carers returning to work

In its spring budget, the government committed to supporting people who wish to return to work after a career break. To understand the implications and how returners can be best supported, the government is carrying out a consultation which closes on 22 October 2017. The consultation wants to hear from:

  • employers
  • organisations or individuals with knowledge of returners
  • those who have returned to work after time out caring for children or family
  • those currently caring for children or family who would like to return to work

For more information visit the consultation document and you can complete it online

Case law update

Disability-related absence not effective cause of dismissal

Charlesworth v. Dransfield Engineering Services Ltd

Mr Charlesworth, a branch manager with Dransfield Engineering, developed renal cancer during the course of his employment, which necessitated an absence of several months. During his absence, the company underwent a restructuring exercise in a bid to improve its financial performance which ultimately led to Mr Charlesworth being made redundant. He brought a claim against Dransfield on the grounds of direct disability discrimination, unfair dismissal and discrimination arising from disability. The ET rejected his claim on the basis that his absence demonstrated to his employers that they could manage without him as temporary cover was not required while he was away. Therefore although his absence was disability-related, his dismissal was down to other factors. Mr Charlesworth appealed the decision but the EAT agreed with the ET. This is an unusual departure from many recent decisions regarding disability-related claims but the EAT was at pains to emphasise that each case would turn on its own facts and that employers should continue to act judiciously when implementing redundancies.

Appeal upheld claim that employee disclosure was in the public interest

Chesterton Global Ltd v Nurmohamed

Mr Nurmohamed, a Director of Chesterton’s Mayfair office, was dismissed after making protected disclosures about discrepancies in the company’s accounting policies which, he asserted, led to reduced earnings for him and a hundred other senior managers. Despite both the ET and the EAT upholding his claim for unfair dismissal, Chesterton took the case to the Court of Appeal which upheld the decision of the lower courts on the grounds that he had made a protected disclosure. The Court agreed that although the public interest, per se, was not affected, the number of employees disadvantaged by the discrepancies was sufficiently large to be counted as in the public interest. The size of the company and the deliberate accounting errors also contributed to the decision.

Internal TUPE transfers only apply to integrated businesses

ICAP Management Services Limited (IMSL) v. Dean Berry and others

An internal TUPE transfer is usually only created if businesses within a group are integrated following a share transfer. Under TUPE regulations, if employees refuse to transfer to the new business their employment contract can be terminated. In this case, Mr Berry, a CEO of one of the group companies and employed by IMSL, resigned to join a competitor and took 12 months compulsory garden leave. During the course of his leave, shares in the group parent company were sold to Tullet Prebon plc which was renamed TP ICAP plc. Mr Berry sought to be released from his garden leave obligations on the grounds that a TUPE transfer had taken place to which he objected. He started work with his new employer until ICAP obtained an injunction preventing him from breaking his contract. At the High Court, the judge held that no TUPE transfer had taken place not least as both Tullet Prebon and ICAP continued to operate as distinctly separate businesses (albeit under common ownership). When selling shares in group companies, it is useful to consider the TUPE implications before deciding whether or not to integrate divisions post share transfer.

About the author

Ian Besant Partner

Ian is head of the employment & HR team. He 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.