Be Aware - May 2017
The Information Commissioner Fines Honda For Breaching Data Protection and Electronic Marketing Regulations
The ICO have recently published their findings following an investigation into Honda Motor Europe Ltd. This revealed that the car company had sent 289,790 emails aiming to clarify certain customers’ choices for receiving marketing.
Honda believed the emails were customer service emails to help the company comply with data protection law. However, when required Honda couldn’t provide evidence that the customers’ had ever given consent to receive this type of email, which is a breach of PECR. Further details can be found .
This exercise appears to be an attempt by Honda to ensure that their database and marketing information comply with the new stricter requirements to establish permissions for data processing. It is vital that you can establish what permissions you hold over any personal data you hold before 25 May 2018.
With a year to go until the implementation of the General Data Protection Regulations (GDPR) on the 25 May 2018 this is not just an issue for franchised dealers. All businesses will have to ensure they are correctly processing personal data and comply with the new stricter requirements to establish permissions for data processing. It is vital that you can establish what permissions you hold over any personal data before 25 May 2018. If you have not already, all businesses should review their customer databases to establish what they want to be able to do with the information, whether they currently hold the correct permissions and if not how these permissions are obtained and recorded.
Are you ready for the General Data Protection Regulation?
The GDPR has effectively rewritten the Data Protection Directive, the mainstay of current data protection regime. From May 2018, the GDPR will have a significant effect on your responsibilities when storing data and the uses you can put data to. All businesses are affected, particularly where they use customer details for marketing purposes or exchange them with other businesses in any way. Failure to get this right can result in fines, or worse.
In this second in our series covering this significant change to the law we provide a general overview of the regulations and ask the question, are you prepared?
Dismissing employees on long term sickness absence with no medical evidence
“I have an employee, Jane Doe, who has been absent from work since last July and has exhausted her statutory sick pay. This looks to be long term as she has had a tumour and operations. We have asked for her consent for a Consultant’s report but she has refused and now her family is saying she is too ill to sign and give consent for the report.
Based on the information we have to hand, can we terminate her employment? We wanted to get a view on her health to see whether we continue or terminate her contract. We are very sympathetic to the situation but we do have a business to run and her absence is causing strain on her department“.
Employers have to take care when considering a dismissal on the grounds of long term ill health.
Following the recent Court of Appeal decision in O’Brien v Bolton St Catherine’s Academy, there are three important points to consider,
- It is not necessarily unfair to decide to dismiss an employee who is absent for more than twelve months if there is no certainty as to when the employee will be able to return;
- The impact and severity of the same of the employee’s continued absence must be a significant element when determining at which point dismissal becomes justified*;
(*The courts are saying that tribunals will expect to see evidence of the disruption to the business.)
- Where an updated medical report is provided, the decision to dismiss must be fair based on the information available to the employer at the time.
The reason Bolton St Catherine’s Academy lost at the Court of Appeal was because Ms O’Brien at her appeal hearing produced a medical report which said she was fit to return imminently. They failed, therefore, in not taking that into account and not overturning their original decision to dismiss. Had she not presented such a report then it is more likely than not the Court of Appeal would have upheld the EAT’s ruling.
In short, therefore, this case means that employers are not expected to wait forever for employees to recover from illness and, therefore, dismissal is feasible and should not necessarily be unlawful.
Turning to your situation with Jane, therefore, clearly you don’t even have a medical report because she is refusing to provide consent to allow you to request the same. In the circumstances the company would have grounds to argue that the decision they are seeking to make is based on all the evidence available to them at the time; due to the refusal. It would be different, for example, if she gave consent and the report favourably said she would be returning shortly.
Given, therefore, that you are in somewhat of a hiatus, the fundamental question to ask is whether “her continued absence is having a severe impact on the business”. If so and therefore there is too much strain to wait any longer for an improvement in her health, then that should assist to justify your decision for proceeding with a dismissal. If you can provide evidence to show the impact to the business then the company would be in a stronger position to take action. If, however, it is not an inconvenience to the business with her being off then arguably, therefore, applying the decision from O’Brien, the company may unfortunately have to wait further for her health to improve or, proceed on a commercial basis and accept the inherent risks.
Paternity Leave under the Fostering to Adopt Scheme
“We have an employee who is hoping to adopt a child under the fostering to adopt scheme. He will be eligible for 2 weeks’ paternity leave, as he has the correct length of service and earns enough. My main question is how much notice does he have to give us to take the leave? “
With paternity leave, eligible employees can take either one or two whole weeks within 56 days of a child’s placement for adoption. Placed for adoption with a fostering arrangement means placed with a local authority foster parent who is also a prospective adopter.
To be eligible the employee must have 26 weeks’ continuous service ending with the week in which the child’s adopter is notified that they have been matched with a child.
As the employee is under a fostering for adoption arrangement, a person is matched with a child for adoption when a decision has been made to place the child with a local authority foster parent who is also an approved prospective adopter.
In respect of notification of being matched for adoption, this is when a local authority foster parent is identified as an adoptive parent, on the date on which they receive notification of the adoption agency’s decision.
In respect of providing notice, the employee must give written notice of their intention to take ordinary paternity leave by giving details of the date on which the adopter was notified of having been matched with the child, the date on which the child is expected to be placed with the adopter, the amount of ordinary leave the employee intends to take (i.e. whether just one week or the two consecutive weeks) and the date on which the employee wishes to start their leave.
This has to be provided within 7 days of the date on which the adopter is notified of their match with the child. If it is not reasonably practicable to meet this time limit then notice must be given as soon as it is reasonably practicable.
This advice is general in nature and it 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, contact us on 0845 305 4230 at any stage for advice and assistance as appropriate.