Any Questions: GDPR; Sickness Absence; Mobility Clauses; Disciplinary AllegationsPosted in : 'Any Questions' Webinar Recordings on 1 December 2017
Scott: Good afternoon, everyone. It's Scott Alexander here from Legal-Island. Welcome to our third webinar with Seamus McGranaghan from O'Reilly Stewart. "Any Questions?" is the name. We'll take questions throughout. We've had some questions sent in the last week. We're going to look at some of those as we go through. We have a number of issues, GDPR, long-term sickness, mobility clauses, disciplinary investigations, fair procedures, and indeed reasonable accommodation. And if we get through all of those, I'll be very surprised, but we'll get through as many as we can. And if you have other questions or comment or comment for me, they will be anonymous and I'll ask Seamus on the hoof to answer them.
Questions this month include:
Please Note: This is a direct transcript of our recent webinar. It may not read as well as a written article would.
The first question that we're going to look at, the first issue is the GDPR, the General Data Protection Regulation and the question here is specifically for HR professionals. Seamus,
Q. Could you please provide more information on the GDPR around the practical changes and practice and documentation for HR professionals whether employed within companies or as external professional advisors handling sensitive information?
Seamus: Well, good afternoon, Scott. And yes, GDPR is the very topical matter at the moment. In relation to this, obviously, GDPR will come into play on the 25th of May, 2018. So everybody is trying to gear up in relation to their obligations. I think the first thing that I want to say about it is that and the big view will be that post its introduction. We are looking at a new playing field in relation to data protection, and there will be certainly a lot of considerations to be given for things like tougher sanctions and the expectations are greater and they're more increased.
So it's a really good time now to be starting to review your processes, and we'll just go through some of those in relation to what I think you can do, but first of all, just to highlight, and I might talk about the Uber case that just came out today a wee bit at the end, but obviously the big one is the tougher sanctions that are coming along and we have fines up to €20 million or 4% of the annual worldwide turnover. So, big difference in relation to what the current fines and sanctions are that could be issued by the regulators.
And the first thing I would say really about is looking to put together a record of your data processing activities, and what information, what data it is that you're holding in relation to your end or that your staff, your suppliers, your clients across the board, what data it is that you have . . .
Scott: Any personal data, if you don't make a list, you're going to miss something.
Scott: And that's the trouble.
Seamus: You won't know until you sort through and look at it, and if you look at some of the guidance that's out there in relation, there's lots of guidance in terms of people accessing that, but they talk about creating this data map or a data flow analysis of what information that you're capturing, how you're capturing and why. And I think it's a good time to look at to say all this information that we have, do we need it all? Is it something that we really do require? And if not, get rid of it, I think, is the best thing, because it reduces your risk and your liability then.
And the second thing is really starting to review your IT systems and your procedures, and you want to make sure that there are appropriate privacy settings in relation to your IT and really give a general review of your documentation on how data is accessed within your office or your business. We had it in here, we did specific training for staff back in the summer, and we looked at things like a privacy impact assessment whereby we asked our attendees just to consider briefly at the start what type of information that they're holding and what's the risk of that information being lost.
So it's just simple things for us, like we have a few shred cupboards, where we take our information that we have that we print off from e-mails and we'll make sure that we're disposing it, that we're putting that into the shreds, the company come and take it away. That it's been appropriately disposed of and that we're not putting it into general waste that goes outside the front of the building to be collected. Things like if we're sending personal information, medical notes and records, HR advisors will be well used to very personal information, sick lines, bank details, and you know…
Scott: Or your salary details, all that good stuff. It's all very highly sensitive information.
Seamus: Highly sensitive information. Anybody that would breach that, there would be a big concern there. And making sure that your passwords are updated whether that's done quarterly or if the system is to do it every six months.
Scott: You do it quarterly at O'Reilly Stewart.
Seamus: We do a quarterly update.
Scott: Do you get a prompt every quarter to update?
Seamus: We do indeed and the prompt comes out, and then it's about the notifying the appropriate protection officer in terms of your passwords so that they're retained and that they're also retained very safely as well, and only certain people can access that. I think it's about looking at development of your policies, training your staff, and really bringing into the mind and the focus of your staff the type of data that they are dealing with and where are the potential breaches of that could be. Are they carrying around information in a briefcase or a suitcase that they could leave on the seat of the train or on the bus, documentation in relation to client information or employee information sitting in the boot of your car in your briefcase and your car gets stolen. It's really about acting smartly.
Another query as well is just in relation to people bringing work home from the office, taking information out of the office, taking it out of the security of your office and bringing it home and what happens in terms of that information, how do they bring it back or if they're travelling on trips.
Scott: Well, a lot of people, of course, on the internet, they automatically have a setting that's stored to the cloud.
Scott: And how safe is that? So they lose it when . . . as soon as they leave the office, so they're not on a VPN.
Seamus: Exactly. So it's about reviewing your systems, and sometimes people will say you have a company laptop and you have an access key and a code for it and that's all that you're getting. And reviewing that and making sure that people are abiding by your policies and procedures. The other thing is just consent in relation to data processing and making sure that you're getting the appropriate consent. It's not satisfactory any longer when GDPR hits us that you can just rely on if you don't come back to us within five days, then we're going to take it that you're consenting.
You should be getting an express consent in terms of having documents signed, and again that's not just a scenario what you can say it's broad consent for everything. It might be that you need specific consents for specific types of documents.
Scott: Okay. We've got a question just come in there from a listener.
Q. We've got a member organisation and they're wondering would our existing members have to give you written consent.
Seamus: In terms of the documentation that you're holding, I think that you need to do a review of the documents that you're holding and make a decision as to whether or not a general consent is applicable to everything. Under GDPR, it's likely that you're going to have to get new consents for the different types of documentation that you're processing. So it's about doing a review, and I wouldn't just rely on the fact that you have a consent now. I think you'll be looking at to review all those and those different types of processing and be safe, maybe go ahead and get the consent signed.
Scott: Okay. We're talking about the GDPR. I'm Scott Alexander from Legal-Island, and Seamus McGranaghan is answering the questions. I see quite a lot of people have arrived just a little bit late. Don't worry too much. We are recording this, and we will put it up on the internet and we'll also send a transcript there, so you can look at all the answers that we've been dealing with later on. So we'll have that done within the week or so if you've arrived a little bit late and missed that question.
There's another question just come in on the GDPR.
Q. Who would be the best person in an organisation to be the data protection officer?
Seamus: Well, I suppose the big point is that, under GDPR, you probably have to have a data protection officer, so there has to be somebody appointed as your DPO. Again, look within your organisation to decide who is the most suitable person for that. You don't necessarily have to appoint someone internally. It can be a third-party consultant. And sometimes that might be the safer way of doing it, because what this person is going to have to be, they're going to have to be independent. They have to be accessible, they have to have expert knowledge, and they have to be able to report to senior management, and they have to be able to give it to senior management as to what it is they can't pussyfoot around where there may be breaches or there are problems.
So you need a strong character that I think is going to be your DPO, and it's looking at your organisation and deciding who within this organisation is a person that would be reflective of those qualities. If there isn't someone then, fine. I think then you go to outsourcing it. And there will be plenty of consultants out there that will be happy to take the work on, and sometimes just taking it out of the organisation can facilitate that aspect of maybe an employee feeling that they can't raise the issues or that they're worried about drawing certain things to management's attention. If it's done outside, it might be the cleaner way of doing it.
Scott: Well, the downside is they're not always there to remind people of their responsibility. So it's a question of balance again, I suppose.
Seamus: That's it. And the other thing just to point out in relation to that is that you need to be careful about conflicts whenever you're appointing your DPO. It really shouldn't be anybody on the IT team or security personnel in case they have a conflict. The guidance tells us that you can't be poacher and gamekeeper when it comes to this. So you are looking for someone that is independent.
Scott: Okay, another question just came in here. Does your organisation have to be a certain size for registration regarding the GDPR? It covers every organisation.
Scott: But it's all of the public sector, and certain organisations that have a lot of data processing that will have to have a statutory data protection officer.
Scott: But everyone is covered.
Seamus: Everyone is covered, and the reality is the larger your organisation, the bigger the expectations will be, I think, in terms of it. So I'm not saying that smaller organisations get off the hook in any way. If there's a breach, there's a breach, but certainly, I think the penalties will be potentially heavier for the larger organisations out there.
Just maybe one point to flag up, just because it has been a topic of matter on news this morning in relation to this concealment of the data breach that the Uber case has come up today, really important to identify that where there has been breaches that they are reported to the appropriate regulators at the time and that it's not a matter that you're hiding behind it.
I think that the reality is and my experience has been, prior to GDPR as well, that if you engage with the likes of the Information Commissioner's Office and if you report to them, if you tell them that you're having difficulties, there is something happening, they will come in and they will assist you. They don't necessarily just come into beat you with a penalty or a fine. They may do that, and there are risks and that's the double-edged sword, but just be clear about your reporting obligations in terms of this. We can see here that Uber had left it for over 12 months, and it seems to be an absolutely massive breach of data protection that happened to them and it hasn't been reported and it will reflect badly on them and it will be interesting to see what develops in terms of . . .
Scott: If there's any listeners are out there and you haven't seen the news, have a look at BBC, and you'll see about Uber have concealed a breach. Now, presumably again, if that were to happen post-May 2018, you'd be looking at sizeable fines. There's hundreds of thousands of people involved.
Seamus: Absolutely. I think it's talking about affecting 57 million customers, and I think that's on an international basis, so they could be facing a number of different types of fines or claims from different countries. But definitely I think that there is probably a bit of a benefit in them notifying of the breach now before GDPR comes in, because I think the fines will be certainly larger.
Scott: Okay. We're going to move on to a different subject here — long-term sickness. It's come up in the last two webinars. So no doubt it be there again next month. We're back again by the way on the 13th if you want to listen in, 13th of December. And it's another Wednesday at the same time, 12 o'clock.
Q. Now, Seamus, please discuss sickness absence and how to reduce levels, what initiatives could be introduced if managing long-term sickness absence and we’ve been advised that non-improvement may trigger a disciplinary. At what stage do you trigger it? There seems to be a conflation of different procedures here.
Seamus: Yeah. I mean the bottom line is for sickness, sickness is going to happen in every organisation, and really it is about trying to manage that. I think the first point is that what steps can you take in order to avoid sickness arising, with the acceptance that it will arise that there could be other ways to monitor staff and pre-empt absence. So if you have disgruntled employees or an employee that's coming to tell you that they're suffering from stress due to workload or that they're aggrieved, that's your first sign, well here there's a potential this employee could go out on sick and it could be a lengthy period of sickness.
So it's getting in there and trying to deal with the issue and trying to mediate and resolve the issues for employees before they would go off on sick leave. Where you do have circumstances that they do go off on sick leave, I think it's about keeping in touch with the employee and adhering to your welfare obligations in respect to the employee. Fine line with that. You don't want to be getting into a position where an employee is making allegations that they're being harassed by the employer. So you have to be careful in terms of maybe at times being a ‘friend from a distance’ at times and that you are meeting with the employee and finding out what their prognosis is, how they're feeling, what their likely return date is.
There will be the third step on that where there would be a longer period of sickness absence and really you're then into looking at medical evidence through Occupational Health or through getting an update from the general practitioner. And again, that will be about explaining to the employee and getting them on board in relation to the reasons why you are doing that and everything else.
In terms of trying to deter sick leave and sometimes within organisations, you just have a high-level sickness. I know that there's various things that they've come across the clients can do in relation to. They maybe set up on attendance bonus, where they will say if you have 100% no sickness or no absence, you'll get a bonus at the end of the year of X or a percentage of your salary or whatever it is. And that maybe will be tapered down for inevitable sickness that will happen, and that can act to deter.
Or the other side is that sometimes you will see this where there will a disciplinary policy and certainly within public sector you would see it quite a bit, where there will be triggers at certain times if the employee has had so much absence or for periods of absence or if they're divided up over the year, then it triggers disciplinary proceedings. That's a potential way of dealing with it. But you need to be careful.
Scott: But that's not for long term. That's for . . .
Scott: …intermittent absences. For long-term absence, it's not really a disciplinary issue. It's capability.
Seamus: It's a capability issue, and it should be dealt with in that manner. But when you're looking at triggers, a lot of Monday, Friday sicknesses happen or something along those lines and they're repetitive and you've talked to them informally and it's not working, then you're sort of into the formal side of it, but you need to be careful obviously. Any employee that's off on long-term sick leave, there's potential disability discrimination issues, and it's not always appropriate just to discipline, because someone has been off ill. So, it's about reading the circumstances and applying them appropriately, and being fair about it.
Scott: Okay. Still on this issue here, but maybe moving into a more specific area,
Q. Do employees have the right to refuse to answer questions in a company medical, or can they refuse to participate in drug tests if not provided for in the contract?
Seamus: Well, again the question there is slightly difficult in the sense that whether it's in the contract or not, whether someone agrees when they sign their contract of employment that they will attend for medicals or that they're required to or they'll take drug tests, they can't be forced to. And you need to be careful that, specifically when it comes to drug tests that someone isn't feeling that they're putting their arm on the table and have a needle put into it, because you're into all sorts of issues of criminal activity, maybe in terms of retaining somebody against their will or something along those lines.
Scott: This is not a protection issue. It's because . . .
Seamus: Well, absolutely.
Scott: That comes through too.
Seamus: It's keeping it simple as well to the aspect of searches in terms of people's property or maybe body searches and things like that that would happen as well. You can't force them into doing it, but I suppose what the issue would be if they signed a contract, let's say, that they're willing to do it and then that they don't, it will certainly raise the suspicion of the employer and there could be disciplinary action that would arise after that. Certainly, I think, that the employer would be entitled maybe to draw inferences in respect of their failure to agree to partake in those sorts of tests. And really ultimately where the employer is left with it if they've been offered it and they don't do it or they're unwilling to attend for medicals and undergo these drug tests, the employer has the right to make a decision on the basis of the evidence that's before them.
So they may have a suspicion that someone is maybe taking drugs maybe through physicality that they have the suspicion or through maybe their work standard going down. If they refuse to do it, the employer can only proceed on the basis of the evidence that they have before them, and again, I think, at that point, it's about making a balanced and proportional decision.
The other side of it as well would be for an employee attending a medical. You will have someone that will just point-blank refuse to attend the medical. Again, you're drawing inferences in terms of and arriving at your own conclusions in that respect.
Where they attend the medical and don't answer questions, again, they can't be forced, but it's important that that's reflected and it's detailed within the medical report that's received. And sometimes they will do the medical and they'll say and we see an awful lot now that the employee wants to see the medical before it's released to the employer, because they want to maybe make sure that it's correct and what they've said to the doctor is reflected in it, or sometimes you'll have that the report is sent out simultaneously to both. But it would be unusual if they've attended the doctor and then refused to have the medical provided for, and there might be an issue over costs there if they've agreed to go, but they won't agree for it to be released.
So there's a lot to consider there, but ultimately the employer can only essentially make the requests. If the employee refuses to comply, then the employer is entitled to draw an inference and make a decision on the basis of the documentation that they have.
Scott: Okay. Another unusual question here, Seamus, about certificates coming from other countries.
Q. The second most popular language in Northern Ireland is Polish. So we get a lot of people from Eastern Europe and such like and some get sick. So this listener here has said they've got an employee who's gone back to their home country but their sick cert maybe comes from a doctor in Poland or Lithuania or whatever.
Can you refuse, as an employer, to take that? Must you take the local (i.e. outside the UK) certificate? Do you have the power to say to the person that you've got to come back to our occupational health to be assessed?
Seamus: To be assessed? Well, I think a couple of concerns there in relation to that you may have a policy and procedure that says that, but there could be a risk that the policy might be discriminatory. The first thing is someone might be unwell. They might have had surgery, or they might have been told by their doctor that they should be in a period of convalescence and they might return home to be with their family, where they will get comfort and they'll get support.
And when they do that, it's obvious they're not going to be in position to attend their local doctor, and I think to refuse a sick line from a doctor outside this jurisdiction would be problematic for the employer.
Scott: It's not even sensible, because if you're isolated and you're feeling sick and horrible and you're sitting in a bedsit in Belfast or something, as opposed to being back home where your family is around you to support you and make you soup…
Scott: Then you're going to get better quicker, you know?
Seamus: Yeah, that's it. And I think the reality is that there might be . . . I can understand there maybe being some concern by the employer of maybe getting a sick line that they're not familiar with, maybe not in English. But certainly I mean there's ways that they can deal with that. You know they can take steps to verify the sick line. They can make a telephone call to the doctor's surgery wherever the person is and verify it that way. They could go online to make sure that it is coming from a surgery and things like that. I'm sure that the doctor's details are available online as well.
So they really do need to be careful about saying that we only accept sick lines from here. It's not going to be practical all the time. And again, I think that question about whether you would have to come back to Northern Ireland to undergo occupational health. That, for me, is a difficulty as well for the employer. I think that you would have to have a very specific circumstance, where maybe there is a specialist doctor within this jurisdiction that deals with what the ailment is of the employee. But I would say that is very exceptional, and otherwise I think it's practical and it's reasonable for the employer to source an occupational health doctor in the person's home country where they're at.
Scott: And there's a good chance that your own occupational health provider will have somebody in another country.
Seamus: Yeah, and maybe make a recommendation for you or something on those lines, absolutely. And there's no reason either that if you get a report that it can't be translated or the report can be provided in English as well. So, yeah, the big flag there would be this kind of race discrimination would raise its head by the employee if they felt that they weren't be treated . . .
Scott: Of course, there's no limit on race discrimination claims if the employee decides to take one.
Scott: And it's gone against you.
Scott: I see we're still getting latecomers coming along. Don't worry too much if you've missed the beginning of the broadcast. We will be recording it. We will be providing you with a transcript as well. The previous ones are on the website. If you visit the Legal-Island website, you'll find them there.
Moving on to our third area, we're moving on to mobility clauses.
Q. Can an employee be moved where their contract allows them to be moved to other duties deemed appropriate to their grade, for example outside of functional area?
Seamus: Yeah. I think that there's two questions here that have been asked. One about mobility and then second about changing their job role in terms of their additional duties that they're going to be provided with. So the first protocol is obviously go back and look at the contract, make sure that there is a suitable and a well-drafted mobility clause within the contract. That said, just because there is a mobility clause in the contract does not mean that you can force the employee to move to, you know, another store or another office or something along those lines.
Then you'd have to sit down with the employee, consult with the employee. They may have very good reasons as to why they couldn't. For example, maybe if they are suffering from a disability or that they have specific family circumstances, where they're a carer or something like that. And if you enforce that, there could be potential comeback through discrimination claims. So it's about looking at the overall circumstances rather than just simply saying this is happened and you're going.
Scott: Even if you take out the discrimination area, the courts would very much look at it, when it comes down to reasonableness, on a subjective basis; is it reasonable for that employee to be moved?
Scott: So you could move somebody two miles in a mobility clause, but if it's two miles and there's no bus to get them from where they live to where they are supposed to work, it's not reasonable, you know?
Seamus: Yeah. And how that would be facilitated. The other side of that is in relation to any amendment to their duties and responsibilities. Again, whether they would see that as a fundamental amendment to their terms and conditions of employment. You need to carefully consider that they have the suitable skills and experience in order to undertake the additional duties, and that there's a period of training that would be provided for in relation to that as well.
It's not an automatic decision that would be made and told to the employee. I think that there would be that period of consultation with the employee and helping the employee to under the reasons for it, why it's necessary and how they can continue to contribute in the role for the business.
Scott: There's a kind of theme coming through all of these, which is each case on its merits. And if we move on to disciplinary allegations here, we've probably got one, which one size does fit all.
Q. Should the investigation or disciplinary procedure be applied during the initial six months probationary period? And I think your answer here may be very much yes.
Seamus: Yes. Well, absolutely. I mean I think that gone are the days where anyone could just bring the employee and say, "I reviewed your performance and you're being dismissed today." The reality is that and certainly in my practice what I see a lot of is that you will continue to get claims for unfair dismissal from employees that are less than 12 months in the position or they don't have the requisite 52 of a period.
But what they'll do is they'll bring the unfair dismissal claim on the basis that they feel that they have been dismissed because of one of their protected characteristics or because of they raised a health and safety complaint or public interest disclosure through whistleblowing or something along those lines.
So it's not just safe for the employer just to say, well, they're only here six months, so we can just get rid of them willy-nilly. The reality is that there is a statutory dismissal procedure in place, the 1-2-3 procedure that we're all aware of. For any dismissal, that should be applied, because if the person brings the claim for that on the basis that their dismissal is on the discriminatory basis for instance, if they bring that claim and they succeed, then the tribunal has the right to look at the dismissal, decide that it wasn't within the procedure and increase the award by up to 50%.
Scott: And it's automatically unfair.
Seamus: It's automatically unfair. So it really does put the employer on the back foot. In my view and my advices tend to be always with clients that if you have a problem with the employee, let them know where the employee is, give them an opportunity to try and improve during that period.
If that doesn't work, it doesn't move them on to the standard that you need them to be at, then if you are going down the route of dismissal that you're putting up and you're inviting them to the meeting and writing and you're telling them what the problem is and what the potential outcome is. Second that you're holding the meeting and there’s a right of appeal, that will at least keep you safe from that point of view of the...
Scott: If you started a new job, you'd want to know the reasons why and think that you had a fair crack before you were dismissed.
Scott: We'll deal with, I think, just one maybe, two questions before we close here.
Scott: I'm going to skip one and move to:
Q. Can the allegations that are put in the investigations vary from those that are put in the disciplinary process or do they need to be the same?
Seamus: Well, I think that again the two types of scenarios there. It would be rare that when I draft disciplinary allegations would they ever be the same as a disciplinary investigation.
Yes, the two are different. Because often through the investigation, you'll give at the start very vague allegations what they are, you'll do the investigation, and then you'll give the detail. And certainly at the disciplinary level, at that point, the employer should be very clear about what the allegations are and not be just a vague of, "You're accused of theft." You'll need to give what they're accused of theft of, when the theft was, how much, and all those details, and case law is clear about that, that the employee has to be very clear about what the allegation is that they're answering.
But saying that, I don't think that the overlap from the investigation to the disciplinary, when the employee gets a disciplinary letter, they shouldn't be surprised all of a sudden by a brand new allegation against them that they haven't heard of before.
If we look at the LRA Code of Practice, it tells us that the investigation process should be used to conduct a full investigation of the allegations. And it's fine if allegations arise during that process. There might be new allegations or fresh or they might be an extension of what's there, just make sure that they're investigated with the employee first of all before you move into your disciplinary process.
Scott: Okay. And I think finally here, it says that again two different issues, if you like, in an internal grievance or disciplinary or investigatory processes:
Q. What documentation are you obliged to share with the individual, who's the subject of those processes? And it's different for discipline and grievance, isn't it, Seamus?
Seamus: Yes. I mean certainly at an investigation level there is no obligation to provide the employee with any sort of detailed paperwork or even any paperwork at that point. You're entitled to go to the employee and say, "I want to have a meeting with you. We’re going to have an investigation in terms of these allegations that have arisen." That's very different to when you get to the disciplinary, point again that the employee should be very clear about what the disciplinary allegations are, and the employee should be provided with the bundle of evidence in advance of the disciplinary hearing, sort of providing every document that has been used during the investigation, because case law again is showing us that if you get to your disciplinary outcome and you're relying on documentation that you haven't provided to the employee in advance, that your outcome will be unfair. The employee has to have a fair crack at meeting the allegations and responding to them.
Scott: And that means you provide them with everything… the evidence that points to guilt and the evidence that points away from guilt in the disciplinary issue. But that's different in grievance. So, in a grievance, what do you provide to the person?
Seamus: Well, your grievance will often start simply with your letter of complaint or your grievance letter from your aggrieved employee. It's not always appropriate to simply provide a copy of that letter across to the party that has been accused. What you might want to do in those circumstances is maybe paraphrase and lift out of the letter what the allegations are, because remember this the grievance letter might settle what it is that the person is looking for in resolution. And it might be is that if you're in HR, that you're looking at it and saying, "I really feel that this matter could be resolved and we could mediate and we could get these two back on track. But if I provide the other employee with the copy of the letter, it's never going to happen."
So you have to be clear about what the allegations are, but there might be elements that you're not going to go into with that employee in order to make sure that you can arrive at a sensible process and maybe get the employees back on track again.
Scott: Okay. Thank you very much to Seamus McGranaghan from O'Reilly Stewart. We're going to sign off now. But just to let you know, all of these subjects by sheer coincidence we're doing events on Legal-Island next year in 2018. You can go onto the website and see those.
Within a week or so, we should have the podcast and the transcript available on the website. You'll be able to access any other ones currently on the website, and hopefully we'll see you and any colleagues again on the 13th of December. If you send in some questions, that'll be fantastic.
Goodbye.This article is correct at 01/12/2017
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