How to make time fly – HR preparation for the GDPR

Exactly one year from today, Brexit notwithstanding, the EU General Data Protection Regulation comes into effect. This is aimed primarily at commercial progressing of customer data but still has significant ramifications for HR’s handling of employee data. Compliance with the Data Protection Act as it stands will not be enough to protect against breaches of the GDPR, and the new law will represent fertile ground for employees looking to blow the whistle on something.   The numbers being waved around as possible fines are enormous, but even though we think they will be the tiny exception rather than the rule, this isn’t an area for HR to treat casually.

To mark the occasion of just a year to go, our Global IP and Privacy blog has today posted the first in a series of pieces on the GDPR, written with an employer focus. A year may seem an eternity away but ensuring that you are squeaky clean by next May can entail a lot of work before then. So click here to read today’s piece on subject access requests and the position under the GDPR and please do keep an eye on Employment Law Worldview and the IP & Privacy Blog for future posts in this series.  These which will include guidance on your employees’ new rights to access personal data, rights to data portability, to rectify and delete data and to restrict processing.

If you have any questions about what your organisation should be doing to ensure compliance with the GDPR, please speak to your usual Labour & Employment contact or a member of our global Data Privacy & Cybersecurity team.

The Senior Managers Regime in 2018 … a brave new world of regulation

Andrew Pullman explores the serious people challenges for all financial institutions facing the new senior management rules and regulations in 2018

 

A New World

From 2018, the Conduct Rules laid out in the Senior Managers Regime will apply to all financial institutions – we are expecting further details in June 2017. This is an expansion of the current regime for the banks and insurance companies to which it currently applies. The introduction of a culture of individual responsibility is a significant change and it presents a major challenge to the businesses it will affect.

When the responsibility is placed on people, businesses need to ensure that all their staff are appropriately informed and involved (or they run the risk of breaching rules and triggering disciplinary and regulatory sanctions). It is vital that Senior Managers help the people they manage get to grips with the new rules by providing practical training and introducing systems and processes to help manage the process.

Providing a Guide

As the SMR was introduced throughout the banking and insurance industries, one common approach was to run workshops on “Culture, Values and Regulation” or similar designed to integrate the new regime into affected businesses and organisations and (equally importantly, to be seen to do so).

At the heart of the new culture are the core 5 rules themselves, which are as follows:

  • Rule1: You must act with integrity
  • Rule 2: You must act with due skill, care and diligence
  • Rule 3: You must be open and cooperative with the FCA, the PRA and other regulators
  • Rule 4: You must pay due regard to the interests of customers and treat them fairly
  • Rule 5: You must observe proper standards of market conduct

In order to fully understand the rules and the manner in which they are to be applied to everyday work, it is important to provide staff with an overview, not just explaining what the accountability regime is, but also why this is happening and what the intended purpose is. You can then use a series of scenarios to bring the rules to life for everyday work.

From a broad examination of the regime, participants are then able to identify the key features of the required culture as it will apply to them and, crucially, how these differ from the past.

Bespoke Direction

Rules are a framework designed to be rigid. However, the businesses and organisations they are to be adopted by will be varied, with subtle but important operational differences.  This is why it is vital to understand how the new regime will work at your organisation – firms will need to create a compliant system which will uphold the values and purpose of the rules within a familiar framework yet also not interfere with the smooth running of business.

One way to test these systems and ensure that participants are able to apply the rules in the real situations they will be facing is to use scenarios as part of the training – where possible, drawn from real-life case studies. The ultimate aim would be for delegates to use the understanding and experience of the session to create personalised action plans they can immediately implement when they return to their work.

The regulators have stated that their extended regime will be ‘clear, simple and proportionate’. The difficulty comes with the integration of these “clear and simple” rules into complex organisations and the scope for discovering at that time that the regulators’ after-the-event views of what would have been proportionate in any given case do not necessarily accord with yours.

 

Andrew Pullman is Managing Director of People Risk Solutions, a Human Resources consultancy specialising in culture, values and regulation in financial services.

Managing Political Speech In The Workplace

In the current political environment, employers and employees alike may be wondering – what, if any, political conversation in the workplace is acceptable or appropriate?  Tones of “freedom of speech,” “freedom of association,” on one hand, intersect with tenors of “workplace harassment” or simple annoyance, on the other.  Although like the political debates themselves, the rules governing politics in the workplace are not entirely black and white, here are some important guidelines.

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Unclear and present danger – incorrect use of “Independent Contractor” arrangements may have expensive consequences

The ever-vexed question of whether a worker is an employee or independent contractor has once again come before the Australian courts. The recent decision of Balemian v Mobilia Manufacturing Pty Ltd & Anor provides a reminder to employers of the potential financial ramifications of getting this wrong.

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Webinar: New Laws in Germany Regarding Agency Workers and Freelancers − What Employers Need to Know

Squire Patton Boggs presents a webinar to discuss the recently-introduced significant reform to the laws governing the leasing (temporary hire) of personnel in Germany, which significantly affects businesses working not only with agency workers, but freelancers as well. We will provide practical advice on how to deal with this new legislation and explain what companies should be aware of now as well as the steps they need to take.

On 14 June 2017 at 4.00 p.m. BST (UK) (5.00 p.m. CEST, 11.00 a.m. EDT, 8.00 a.m. PDT) Martin Falke and Laura Sparschuh will also discuss what is coming up in the legislation pipeline, including a new law relating to the transparency of remuneration, which is likely to come into effect later in 2017.

In addition, they will cover:

  • Recent Labour Court judgments that may have an impact on your day-to-day business
  • Best practice on granting stock/stock options of overseas parent companies

The webinar will be a 50-minute presentation in English, followed by a 10-minute online question and answer session.

Intended to help you manage labour and employment law risk across your international operations, the webinar will be of interest to both HR professionals and in-house counsel.

This webinar is part of our 2017 series focusing on key labour and employment issues in countries throughout Europe, the Middle East, Asia Pacific and the US.

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Politics is not the art of the possible. It consists in choosing between the disastrous and the unpalatable”. Main parties’ employment manifestos reviewed

General Elections. Don’t they seem to come round more frequently than they used to? A tough call for voters, this particular one, not just because of economist JK Galbraith’s wise words above but also because the outcome won’t make the slightest difference to the biggest issue of the day, the terms on which we are allowed by the rest of the EU to come out of Europe.

So what does the committed voter get to choose between? From the high-level employment perspective, all the main manifesto documents look broadly the same – more rights and protections for workers and the equally laudable, but obviously entirely incompatible, less red tape for businesses. They agree, sometimes violently, in relation to the importance of filling skills gaps, increasing apprenticeships, payment of at least the minimum living wage, preservation of existing EU-derived employment laws and curbs on zero hours contracts. But as we know, election manifestos are much like new Thameslink timetables – launched with great fanfare but no real expectation on users’ part that any of it will actually be true. So before the nation pulls the duvet over its collective head on 8 June, let us take a brief look at the main parties’ employment manifestos to see if we can separate the disingenuous from the delusional from the outright dishonest.

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NLRB Rules That Barring A Former Hotel Employee Who Sued Her Employer From The Premises Is An Unfair Labor Practice

On May 16, 2017, a two-member majority (Members McFerran and Pearce) of the National Labor Relations Board held that it was an unfair labor practice for the Grand Sierra Resort &Casino (GSR) to bar a former employee from its premises after she filed a class and collective action lawsuit against the employer. Continue Reading

Good news for employers facing holiday pay claims

Rumbling around at the less well-publicised end of the holiday pay saga is the question of just how far back such claims can go.  Changes to the Employment Rights Act 1996 limited this to two years for claims brought after 1 July 2015, but thanks to Bear Scotland Limited, the actual exposure may be very much less. Bear is a case where the outcome is far more interesting than the facts, so put briefly, it goes like this:

  1. Underpaying holidays, in particular through the exclusion from the calculation of something which ought to be in it (e.g. overtime or commission earnings) is an unlawful deduction from wages.
  2. Under Section 23 ERA, any claim to the Employment Tribunal for unlawful deductions must be made within 3 months of the deduction or of the last of a series of deductions;
  3. “Series” requires a chain of underpayments to be linked by both time and cause. If they are for different reasons or too far apart, they will no longer count as a series and so any of them falling more than three months before the referral to Acas will be out of time and (subject to a “not reasonably practicable” discretion on the part of the Tribunal), not recoverable;
  4. “Too far apart” for these purposes was determined in the original version of Bear Scotland as anything over three months. Following a hearing in December last year, this has just been upheld by the Employment Appeal Tribunal in that same case.

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Industrial Commission of Arizona Issues Long-Awaited Proposed Rulemaking Regarding Arizona’s Paid Sick Leave Statute

We previously reported that all Arizona employers will be required to make paid sick leave available to their employees beginning on July 1, 2017. The law requires that businesses with 14 or fewer employees provide at least 24 hours of leave annually, and businesses with 15 or more employees provide at least 40 hours of leave annually, to employees to treat their their own illness or obtain preventive care, to care for a family member who is ill or needs preventive care, for certain circumstances associated with sexual or domestic violence, and for business closures precipitated by outbreaks or threatened outbreaks of communicable disease.

On May 10, 2017, over six months after the election, the Industrial Commission submitted a Notice of Proposed Rulemaking to the Arizona Secretary of State. The proposed rules answer a few open questions commonly held by Arizona employers, leave many other questions unanswered, and raise some new issues. We have prepared an alert for Arizona employers detailing their obligations under the Arizona statute, addressing the questions answered in part by the new proposed rules, and explaining what steps employers can take if they wish to submit further comment before the rules are finally adopted on June 5, 2017.

In the post – FWC delivers mixed messages on dismissal for social media indiscretions

Following recent differing decisions of the Fair Work Commission (FWC) it seems that Australian employers must still tread a fine and uncertain line in determining whether employee misconduct on social media is a valid reason for dismissal.

In the recent case of Stephen Campbell v Qube Ports Pty Ltd t/a Qube Ports & Bulk in March 2017, the FWC considered the conduct of a veteran employee who publicly disrespected his employer’s management on social media. Mr Campbell had been investigated for misconduct after damaging company property, failing to report the damage and lying when questioned about it. Taking serious umbrage at these allegations Campbell took to social media to label the Chairman a “pig” in a post that also stuck the boot into the employer’s management and policies on a more general level.

While the employee’s social media conduct was not the reason given for his dismissal (that was the other issues alleged) the FWC noted that this type of conduct was “unacceptable” and suggested this conduct would have been enough to warrant Campbell’s dismissal too.

In other recent decisions however, the FWC has found that conduct on social media did not warrant dismissal. These included thinly-veiled criticisms and disparaging comments made by a teacher in a social media post to friends and colleagues in Mary-Jane Anders v The Hutchins School last year: “…We teach to have confidence in our abilities; do not allow others to put you down…the discrimination you receive is totally debilitating”. While the post itself was not referred to in the School’s letters of allegation leading to dismissal (its having already been the subject of a warning), the FWC found it was relevant to Ms Anders’ behaviour, which included failing to treat her colleagues respectfully and disloyal behaviour. The FWC found the comments gave rise to the possibility of the School being exposed to ridicule and causing distress to those employees targeted, but found they showed no more than a lack of judgement on her part.

In the case of Michael Renton v Bendigo Health Care Group five months ago, a nurse who “tagged” work colleagues in sexually explicit videos on social media and called his supervisor a “red-headed c**t” in personal messages to a fellow employee was found to have been unfairly dismissed. The nurse’s termination was deemed by Commissioner Bissett to be “disproportionate to the gravity of the misconduct”. The conduct was said to be boorish, offensive and distressing to his work colleagues. However, the Commissioner was careful to note that the question to be considered was not whether the employee engaged in serious misconduct, but whether the dismissal was harsh, unjust or unreasonable.  Although the ‘pranks’ could justifiably be considered serious misconduct, the “one-off” nature of the event did not justify a decision to terminate. The conduct was said to have deserved a swift and strong response from the employer and the employee should have apologised unequivocally, but the termination was nonetheless harsh in the circumstances. In our view, Mr Renton can consider himself more than a little fortunate here – another Commissioner could well have reached the opposite conclusion. The case is certainly not authority for the proposition that you can say pretty much whatever you want about your management online so long as you only do so once, or that a failure to apologise is irrelevant to whether termination is justified.

Lessons for employers

What constitutes social media conduct worthy of dismissal therefore remains ambiguous at the margins. Employers should have a clear and comprehensive social media policy which provides examples of unacceptable conduct, and provide training on that policy, so that all employees are aware of the employer’s expectations on acceptable conduct and when disciplinary action may be taken (including up to termination of employment). They can then more readily seek to rely on a policy breach to support disciplinary action (including dismissal) for misconduct on social media.

But do be aware that although such a policy is persuasive it is not determinative, the FWC retaining an overriding discretion to deem conduct insufficiently offensive to warrant dismissal even if your policy says otherwise. Aside from the words themselves, context will also be important – how public was the post, what harm does it do, is it aimed at a live and sensitive individual or an inanimate corporate, was there some background disagreement or provocation or was the criticism implicit in the role (e.g. a union officer inciting strike action), was there a prompt retraction/apology etc.

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