IGA News

Be Aware - June 2018

Be Aware - June 2018

30 May 2018

GDPR - Access Requests

I have an employee who left under a cloud. Now he has gone, he has written to me asking for a ridiculous amount of personal information, CCTV footage of him, any email mentioning his name, all the documents from his personnel file. I think he is just trying to make trouble and it will take me a long time, so can I refuse the request?

Under the Data Protection Act 1998 all employees have had the right to a “subject access request”. The right is to data that could potentially identify the employee as an individual and of course the information might be stored in a number of ways, either electronically, in paper files or on camera. The precise rules for dealing with the subject requests will soon be changing under the GDPR so from 25 May 2018 onwards, the employer would have to comply with the request without undue delay and within one month. It used to be the case that you could charge a £10 fee for the request, however, that is soon to be abolished under the GDPR. Unless the request is manifestly unfounded or excessive. In very rare circumstances you can also refuse a request on those grounds but the guidance from the information commissioner suggests that will be the most extreme cases only. There are some limited exceptions to the exemptions to the data that you would have to disclose, for example, if the personal data being requested is legally privileged. Subject access requests do unfortunately often take a large amount of time to collate but given there can be fines for non-compliance employers are advised to respond. It will also be a criminal offence under the new legislation to change or conceal information instead of responding properly to a subject access request.

Apprenticeship Agreements

“I’ve always employed apprentices using our standard contract of employment that I use for all of my employees. I’ve heard it is very difficult to legally terminate an apprenticeship. I’m thinking of employing a new apprentice and I’ve heard that in England & Wales there are these apprenticeship agreements that potentially make it much more straightforward to terminate an apprenticeship. Is that true?

In short yes, in England and Wales where the Apprentice Skills Children and Learning Act (ASCLA) 2009 applies you can guarantee if they are on a certain type of contract (apprenticeship agreement) you can terminate and there should be no risk in law that they are apprentices rather than employees.

The point of distinction is that apprentices potentially cannot be terminated in the same way as employees can e.g. an apprentice cannot be terminated on the grounds of redundancy failing short of closure or fundamental change in the character of the employer’s enterprise. Furthermore, an apprentice may only be dismissed for conduct if his conduct is so bad that it is impossible to teach him the trade. The risk being that apprentices can pursue claims for breach of contract in the County Court or Sheriff Court for tens of thousands of pounds based on the argument that the apprenticeship could not be terminated, as the employer terminated and hence damages are payable for the remainder of the apprenticeship term. Potentially claims can also include future loss if the apprentice argues that they couldn’t continue in their trade.

If the individual is employed under an ASCLA Apprenticeship Agreement they have the status of an employee rather than apprentice and can therefore potentially be lawfully dismissed for capability, conduct, non-attendance at college and poor college work etc.

The Apprenticeship Agreement that you would use in England (and separately there is another for use in Wales) would not ordinarily therefore be used for apprentices in Scotland and a different Agreement would need to be in place for them as ASCLA does not apply in Scotland. It will be important therefore that for a Scottish apprentice the contractual documents support an argument that you can bring an apprenticeship to an end early and not face the kind of claims in the Court for breach of contract. You would therefore want very clear express terms about the circumstances in which the apprenticeship can be ended which could essentially set out that certain matters of capability, conduct, non-attendance at college, poor college work etc could apply and be signed by all the parties (including the training provider). It would still be the case that for best practice a series of warnings is followed to mirror the usual disciplinary process for employees. Unfortunately for Scottish employers even with these clear express terms it remains arguable that the individual is employed as an apprentice rather than an employee such that Scottish employers face greater uncertainty in this area.

The RMI members section contains template documents (including Apprenticeship Agreements) however if in doubt it is always recommended that you use the advice line and take employment law advice when either recruiting or terminating apprentices.

Renewing contracts

“I have recently signed an advertising contract which I thought was for 1 year only. I have now been contacted by the company and told it automatically renews if I do not cancel. Is this fair?”

Firstly, this is not an uncommon problem. We are seeing more contracts that automatically renew. This can simplify matters for regular contracts such as laundering services, insurance and waste disposal. The problems come when members do not know they will renew until it is too late.

1. Were you told about the renewal or provided with contractual terms at the beginning of the contract?

It is a basic principle of contract law that only terms incorporated into the contract can apply. If you were specifically told about the renewal then this will apply. However the terms of any renewal or cancellation process must have been sufficiently clear to be binding.

It becomes trickier where you agree to a contract without signing any terms and conditions. As businesses the courts will assume that you have read and intend to be bound by any terms signed.

2. What are the cancellation terms?

If the contract has renewed are there sufficiently specific terms to cancel the agreement. If these terms are not sufficiently specific then the court will have to interpret their meaning. Each case will therefore turn on its facts. However, the most likely outcome is that the notice period for cancelation will be the period covered any one invoice. i.e if you are billed monthly one month, is weekly one week.

3. What if the terms are unfair?

In some respects, tough. There are significantly less statutory protections in business to business contracts. If you have signed it you will likely be bound by the terms, so read any terms thoroughly.

That said, there is some protections and arguments that may apply. The most likely is under the Unfair Contract Terms Act 1977. Where you are contracting under the other side’s standard contract, section 17 of the act would prevent

them from being able to use their standard terms to

“render no performance, or to render a performance substantially different from that which the … customer reasonably expected from the contract;

if it was not fair and reasonable to incorporate the term in the contract.”

You may, where the original contract is sold as one year therefore be able to argue that any clause that entitles the other side to renew automatically would be unfair.

Conclusion

Check all contractual terms before reaching an agreement as prevention is better than cure.

Once signed regularly review contracts to ensure they remain relevant and, where you are unhappy that you are familiar with the steps needed to cancel them. This is particularly important for ongoing contract such as Laundry contracts, waste disposal contracts advertising contracts insurance contracts

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, call 0845 305 4230 at any stage for advice and assistance as appropriate.