IGA News

Be Aware - September 2017

Be Aware - September 2017

31 August 2017

What does a “Maybe Fit” Fit Note mean?

“We have an employee who has provided us with a Fit Note saying that she maybe fit for work subject to adjustments. The adjustments being varying the hours of her working day. We are not sure we can accommodate this, so what does it mean, does the company have to agree to these adjustments and, if not, what can we do?”

Where a “Maybe Fit” note is provided by an employee, inevitably it will follow with some form of suggested amendments by the GP. It is not a legal requirement to comply with the GP’s suggestions, however, it would still be prudent to meet with the employee to discuss the adjustments and whether they can be facilitated or not. Where they can be facilitated, then the employee would return to work and have those adjustments put in place. Any such adjustments would only last for the period that the Fit Note covers. For example, if the employee is signed as Maybe Fit for one month, then the adjustments would only be needed for a month. At the end of that period, arguably the employee should then be fully fit to return to their normal duties, unless they go back to their GP and receive a further “Maybe Fit” note. The Fit Note itself would specify whether or not the employee needs to be reassessed by the GP, but in most cases the answer is no.

On the other hand, where the company cannot put in place the suggested adjustments, provided these are for objective reasons (rather than the company seeming to be difficult) then legally the employee would remain on full time sickness absence until they are fully fit to return to their role. Unless there is a contractual sick pay policy in place, the employee therefore would continue to receive statutory sick pay.

In summary, it really depends on what can be agreed between the parties, so if the GP’s suggestions cannot be accommodated to the letter but a variation of them can, provided both the employee and the employer are happy then a return to work potentially could be facilitated albeit with it slightly different amendments.

Are you ready for the General Data Protection Regulation- Part 4

Lawful Processing

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 fourth in our series covering this significant change to the law we look at the requirement for processing personal data.

What is processing

Processing is defined under the GDPR at Article 4(2) as

“Any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;”

As such whenever you are collecting, organising, structuring, storing, adapting, altering, retrieving disseminating or making available personal details, such as an employee’s details for payroll or a customer’s name and address for billing or marketing, then you will need to be complying with the GDPR.

Lawful

To be Under the GDPR processing must be lawful. Following Article 6 of the GDPR processing is only lawful if one of the following apply:

(a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes;

(b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;

(c) processing is necessary for compliance with a legal obligation to which the controller is subject;

(d) processing is necessary in order to protect the vital interests of the data subject or of another natural person;

(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;

(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

Why is the lawful ground for processing important?

Whilst consent to any processing will be lawful, which ground you use is very important as the lawful reason is for processing any data will affect

  • the legitimate uses to which the data can be put
  • how long it can reasonably be kept
  • whether the data subject can request for the processing to be stopped, modified and/or deleted

Whilst you can rely on consent at all times, consent can be withdrawn. Where you are processing data for billing purposes for example it would be more appropriate to rely on ground b. Where you are keeping the data to comply with FCA regulations for record keeping only ground c would be more appropriate.

Where must I rely on consent

Under the GDPR you must rely on consent where you are processing ‘sensitive personal data’

Sensitive personal data includes data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade-union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation.

Whilst it is unlikely that you will be regularly processing such data, you may hold such data for Motability customers or for employees. If you hold such information then you will need to ensure additional protections and consents are in place.

Conclusion

The above is a very broad overview of one aspect of the GDPR. The legislation and guidance is still developing in the weeks and months in the run up to their implementation. This advice is general in nature and we will endeavour to keep you informed through regular articles and case studies. For further information please visit the Information Commissioner’s Office website here.

What is calculated for holiday pay?

“I have recently heard that employers have to include voluntary overtime with holiday pay, but I thought it was the case that only contractual / guaranteed overtime had to be included?”

Until fairly recently it was the case that voluntary overtime was not included in the calculation of holiday pay. However, many legal practitioners, including ourselves, have been advising that in practice it is a worthwhile exercise because when challenged, it is likely a Tribunal would find it is payable. The Employment Appeal Tribunal (EAT) have now made this decision in the case of Dudley Metropolitan Borough Council v Willetts & Others.

Initially the Employment Tribunal held that regular payments for voluntary overtime had to be taken into account when calculating employees’ holiday pay because they were considered to be normal remuneration. The EAT have agreed applying the EU Working Time Directive (notable Article 7), which refers to holiday pay having to correspond with normal remuneration. Here, the EAT found the Tribunal was right to conclude on the present facts of this case, that payment for voluntary overtime was made with sufficient regularity for it to fall within this definition. This is because the employees had contractual hours of 37 per week, however, in addition they volunteered to perform additional duties which their contract did not require them to carry out (i.e. it was therefore a voluntary arrangement) on a regular basis. The Tribunal felt therefore that because the overtime was paid in such a manner and with such regularity that they did form part of the employees’ normal salary to fall under the definition of Article 7. For a period to count as normal, it must have been paid over a sufficient period of time. In each case on holiday pay therefore, this will be a question of fact to consider.

In summary therefore, whilst this decision will be another weight on the employer’s shoulders, it doesn’t mean strictly that every aspect of voluntary overtime will need to be paid. The question will always be therefore how often is voluntary overtime worked, because where you start seeing a regular pattern, the law now stands that it will need to be included in holiday pay. No doubt further test cases may extend to all voluntary overtime so it is still worthwhile taking legal advice when faced with holiday pay queries.

Employment Tribunal Fees

You may have seen the news that the Supreme Court has allowed an appeal by the Trade Union, Unison. It has ruled that the Employment Tribunals and the Employment Appeal Tribunals Fees Order 2013 (which led to a 70% reduction in claims) is unlawful and will be quashed. Unison had argued that fees prevented workers getting access to justice.

The Supreme Court’s decision throws everything up in the air somewhat and there is some uncertainty about what will happen next. Whilst the fee regime has been suspended, it is probable that the Government will issue a consultation paper and then bring in a new fees regime, with fees at a lower level and/or involving a fee payable by the employer when the employer lodges its defence (response form);

It is likely to result in an increase in Tribunal claims over the next few years, so employers will face increased litigation. If that happens, it is very difficult to see how the Tribunal system would be able to cope, as it has been significantly scaled down and reduced in size since 2013.

Conclusions

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.