UK Visas and Immigration  - Coronavirus changes:

UK Visas and Immigration and the Home Office have issued new guidance on how they will approach visa expiration issues during the current Coronavirus pandemic.  These largely deal with the practical problem of restricted travel from the UK during the crisis.

Extension of visas:

Those whose visa would otherwise expire between 24^th January and 31^st May 2020 will have their visa extended to 31^st May 2020.  This is due to the travel restrictions which are likely to prevent many people from leaving the UK. 

This will not happen automatically, and those affected will have to email to CIH@homeoffice.gov.uk with various personal details in order to request an extension to their visa.

Switching to a long-term visa:

Those who are looking to apply to switch from a short-term leave to remain to a long-term visa are also being assisted.  For some visas, an individual must leave the UK in order to apply for a long-term visa.  This rule has been relaxed until 31^st May 2020.  Such applications can be made online.

For more information, visit the Home Office’s website at https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents

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Coronavirus was the first matter evoked by the Chancellor of the Exchequer today in his budget announcement.

This is hardly surprising given the impact that it is having across the UK and the globe.

Key points to note are:

• He confirmed that SSP will be paid from day 1 rather than from day 4;
• Small employers with fewer than 250 employees will be refunded for statutory sick pay that it pays to its employees for the first 14 days which will help with the financial strain these employers are feeling;
• Rather than going to the doctor, employee and workers will be able to get a sick note by contacting 111;
• Statutory sick pay will be paid to all employees who are advised to self-isolate even if they don’t have symptoms; and
• Business rates will be abolished for firms in the retail, leisure and hospitality sectors with a rateable value below £51,000

For the full summary of government's tax and spending plans for the year ahead, please see here.

Lexleyton will of course update you as we receive more information.”

The rules on Shared Parental Leave (SPL) and Pay have been in place for almost five years.  Uptake has been low in general, caused by a combination of the complicated nature of the rules and a lack of promotion by employers.  Fortunately, some clarification has arrived which will be helpful in promoting SPL on both of those fronts.  Until recently, the thorny question of enhancing Maternity Pay but not enhancing Shared Parental Pay had been the cause of uncertainty.  Whether this amounted to sex discrimination was the basis of two cases: Hextall v Chief Constable of Leicestershire Police and Ali v Capita Customer Management Ltd, although each argued the point differently.

The Court of Appeal found in both cases that it was not discriminatory to enhance Maternity Pay while only offering Shared Parental Pay (SPP) at the statutory minimum level.  The rationale for the first of these decisions was based on the identity of the correct comparator for a claim of direct discrimination (the correct comparator for a man on SPL is a woman on SPL, as opposed to a woman on Statutory Maternity Leave).  In terms of the claim for indirect discrimination, the Court made reference to the special nature of Maternity Leave (and the consequent more favourable treatment that is allowed under the law for new mothers) along with pointing to the materially different circumstances of women on Maternity Leave and men on SPL.

8 March 2020 is International Women’s day. Having come a long way since the UN first celebrated this day in 1957, there are still areas where inequality for women and girls persists. 

From an early age, boys and girls are unconsciously treated differently which causes discrepancies when it comes to what they think they can achieve. Girls generally perform better at school yet, according to a study conducted by Heidrick & Struggles, only about 5% of working women are in CEO and upper management positions. As highlighted by the Institute for Fiscal Studies, in an overwhelming amount of companies, women do not receive the same promotion opportunities or pay parity with their male counterparts.  

Ensuring that women have the opportunity to participate to their full potential in the labour market provides personal fulfilment and financial autonomy to them, however there are also a wealth of benefits for employers

• It will increase your business’s financial profitability

Diverse workforces generally achieve higher levels of performance in many of the most common metrics used to measure commercial success. According to a study by McKinsey & Company, businesses in the top 25% for gender diversity on their executive team were 21% more likely to experience above-average profitability, than companies in the bottom 25%.

In a survey conducted by Accenture, those numbers are primarily explained by the fact that more women in an office conjures more innovation, as well as more challenging and robust decision-making. An individual’s mindset is invariably shaped by their experiences and ideas. Diverse teams increases the variety of experiences that team can bring to bear.  Practically, it is a reasoned hypothesis that a diverse team is more likely to examine business strategy and challenges from several angles.  Solutions become more informed and optimised as a result.

• It will improve your business’s reputation

In this modern age of digital advertising, social media and other ultra-fast communication tools, news travels fast. Businesses that have a track record of giving equal opportunities for promotion and development to every employees obtain both reputational and commercial advantages. 

Being an inclusive company is also crucial for companies to attract new customers. A demonstrable culture and ethos of inclusion permeating a business may be critical in situations such as tendering for contracts.

• It will widen your talent pool

In any industry, it makes little sense to draw from a smaller source of potentially suitable candidates.

That means that the reward that comes with developing, retaining and advancing women is significant: it allows companies to tap into the broadest possible pool of talent.

The upcoming generation of workers, for example, harbour forward-thinking and inclusive perspectives and expectations when it comes to working in a diverse environment. 

What does this all mean on a day where we celebrate womanhood? It means everything. The direction of travel is in recognising and appreciating the commercial, ethical and moral power of feminism. In business, more power to women is often aligned to more success. This international Women’s Day, we will raise a glass to that.

In a sneak preview of the Government’s proposed emergency legislation to deal with Coronavirus, Boris Johnson used today’s Prime Minister’s Questions to announce his intention to relax the rules on Statutory Sick Pay (SSP).

With the prospect of widespread absence from work, there has been a great deal of comment on whether the current rules on SSP go far enough to protect workers who are unavoidably unable to come to work.  The weekly rate of SSP is currently £94.25, rising to £95.85 from April.  SSP is payable from the fourth day of absence, with the first three days termed ‘waiting days’.  Crucially, not all absent workers are eligible to receive SSP – in line with many employment-related payments, it is subject to the Lower Earnings Limit, which is currently £118 per week.  Frances O’Grady, General Secretary of the TUC, and Jeremy Corbyn have pointed out that there are, by their estimation, two million workers who fall below this limit and who will receive no SSP. 

Download Coronavirus - Guidance for Employers now for free

The Government’s proposal is to remove waiting days and therefore to make SSP payable from day one.  In the announcement, the Prime Minister appeared to tie this move to the expected need for a period of self-isolation – a step which he underlined that the Government has not requested from the workforce to date.  Jeremy Corbyn has sought to describe the situation facing workers as a “terrible choice between health and hardship.”   In response to questioning, the Prime Minister suggested that nothing will be done to remove the Lower Earnings Limit from the eligibility criteria; rather, the application process for Universal Credit may be amended.

The Government has a difficult job in balancing the need to respond to a potentially damaging virus with the need to protect employers – since 2014, companies have no longer been able to reclaim SSP from HMRC and therefore foot the bill themselves.  While removing the Lower Earnings Limit would extend SSP to those low-paid workers who will miss out, the Government has consulted on ways of reforming SSP on various occasions over the past few years and these consultations have not suggested such a move. 

With the potential scenario of a large number of workers taking time off due to Coronavirus itself and the potential of two weeks of self-isolation thereafter, the cost to employers could conceivably be huge.  The Government’s proposal appears to take a middle ground somewhere between maintaining the status quo and relaxing the SSP rules fully.  In terms of the financial impact on employers and employees, this approach is better news for both and strikes a much-needed balance.

The rhetoric of the Prime Minister has perhaps belies the fear that employers will have.  His continued repetition of self-isolation being an example of workers “doing the right thing” carries a certain implication.  Where self-isolation is necessary, clearly it is the ‘right thing’ in dealing with a potential medical crisis.  However, self-isolation for the sake of it (or where this might be an abuse of the current situation) is not to be rewarded.  Employers have ways of ensuring that absence is genuine and also the power to make sure that those workers who are “doing the right thing” do not suffer as a result of this.  Although the development of the virus is hard to predict, a common sense approach from all parties will hopefully prevail to allow businesses and workers to respond to any threat in a measured way. Ensuring you have a clear policy and procedure that will enable you to implement and manage the new rules is vital. Contact us if a free consultation will help your plan to get ready for the change.

Zero Discrimination Day is observed every year on 1^st March. Although the day is universal in nature and aims to highlight issues related to discrimination in general, there is a particular focus on HIV, AIDS and other health-related issues.

The HIV virus attacks the immune system and weakens the body’s ability to fight infections. AIDS is the final stage of HIV infection when the body can no longer fight certain infections and diseases. While there is no cure for HIV, there are treatments available that can alleviate symptoms and enable infected individuals to live relatively normal lives.

HIV is deemed to be a disability under the Equality Act 2010 from the point of diagnosis. An employee with HIV does not have to notify their employer of their diagnosis. If they do, then the employer must ensure this sensitive information is kept confidential and is only disclosed to others with the employee’s express consent.

Where an employer is aware that a particular employee has HIV, they must consider what reasonable adjustments they may need to make. The employer must also take care not to subject the employee to any detriment as a result of their medical condition as to do so could amount to disability discrimination.

Certain jobs might be off limits to an HIV positive employee, particularly types of work where there may be contact with blood or body fluids. Examples include work in health care and social services.. However, careful risk assessing any specific role would be fair and reasonable, so as to avoid making any discriminatory presumptions.

Discrimination does not occur in a vacuum. A December 2019 report by the Office of National Statistics on disability pay gaps in the UK found that in 2018 disabled workers faced a startling 12.2% pay gap compared to non-disabled workers.  The pay gap varied depending on the type of disability suffered. Workers who suffer from progressive illnesses such as HIV suffered a pay gap of 7.4%. This inequity has led to increased calls for pay gap reporting to be extended from gender to race and disability as well.

There is an ever growing body of evidence showing that increasing diversity and removing discrimination in an organisation increases profitability and innovation.  Further, there are links between increased diversity with stronger corporate governance and problem-solving. In short, the resilience and effectiveness of a business can often be directly connected to a diverse and inclusive environment. 

Successfully sustaining a culture where all employees thrive in an environment free from discrimination should be the aim of all businesses and those who have achieved that status, which is still too rare should be rightly proud to be leading the way in making the working world a better place for all. If you would like a soundboard on how to increase inclusivity and diversity in your business get in touch. It really could be the best step you could take in building a business fit for a sustainable future.

In the week when the UK Government announcing proposals for a points-based immigration system, we consider the position of the EU citizens already living and working in the UK.  3.2 million applications have already been received by EU citizens seeking permission to remain and work in the UK. With business leaders concerned about meeting the flexibility of the UK workforce to meet future labour market demands, here is LexLeyton’s guide on what UK employers ought to know about the EU Settlement Scheme.

Even though freedom of movement continues to apply for EU citizens during the transition period, on 31 December 2020, EU citizens will no longer have an automatic right to live and work in the UK.

EU citizens currently living in the UK need to apply for ‘settled’ or ‘pre-settled’ status before 30 June 2021 under the EU Settlement Scheme.

30 June 2021 is the deadline for applying; not for being granted either settled or pre-settled status.

Section 47B of the Employment Rights Act 1996 says that an employer must not treat a worker badly (subject them to a detriment) if they have 'blown the whistle' on wrongdoing (made a 'protected disclosure'). In Tiplady v City of Bradford Metropolitan District Council, the Court of Appeal looked at what being treated badly 'in employment' means.

The employee was a senior planning officer for the Council. During her employment, she was also in contact with the Council as a householder about sewer issues and building a shed on her property. The employee thought the Council dealt with these issues unreasonably. She resigned and claimed she had been treated badly because she had blown the whistle on the sewer and shed issues.

The employment tribunal said that she could not bring whistleblowing claims under section 47B. She had 'blown the whistle' as a householder rather than an employee. Any detriment was levelled at her in a private capacity and not as an employee. (The tribunal didn’t much like the facts either, saying that the detriments either hadn’t happened or were unrelated to a protected disclosure.) The employee appealed. The Employment Appeal Tribunal and the Court of Appeal agreed with the employment tribunal. The question was whether any detriment had been suffered 'as an employee'. In this case any alleged detriments were levelled at the employee as a householder and not as an employee. She couldn’t bring a claim under section 47B.

This situation will be rare but might be helpful to businesses who provide services to individuals who also work for them. Although detriments in a field other than employment can't be actioned under s47B, retaliatory treatment should always be avoided in business. It's better to deal with issues head on rather than trying to dodge them.

The Equality Act 2010 sets out the law in relation to equal pay. Male and female workers should be paid the same for doing the same job (like work), work which is given the same rating under a job evaluation scheme (rated as equivalent) or work of equal value, unless there is a reason for the pay difference that is not discriminatory. This non-discriminatory explanation is called the 'material factor defence'. It means that there is something (a material factor) other than discrimination which explains the pay difference. If a man is paid more than a woman doing the same job because the market rate for the job was higher at the time of his recruitment, that might be a material factor defence.

Equal pay has hit the headlines recently. The BBC's Samira Ahmed won her case for equal pay. The employment tribunal agreed that her work on Newswatch was 'like work', or work of equal value, to Jeremy Vine's job on Points of View. The BBC were unable to show that the difference in pay was due to something other than sex discrimination.

What do high paid BBC executives have to do with small businesses? The BBC equal pay cases are a reminder of how unequal pay between the genders is still a problem, even when the individuals are in plain sight in front of a national audience. The best way to avoid equal pay claims is to have transparent processes for determining pay, with jobs rather than people determining pay rates where at all possible.

Are you doing enough at work to contribute to your employees' happiness? In his new book 'Can we be happier? Evidence and Ethics', Richard Layard looks at happiness in general in the modern world. He advocates the Happiness Principle, where people should aim to produce the greatest happiness possible and create the least misery. He looks at how employers can play a part in this plan.

Layard quotes a study by Daniel Kahneman which looked at the times of day which are happiest for people. The study found that the worst time of day is when an employee is with their boss. The study also found that most people don't like their jobs. It's difficult for employers to change the work that people are employed to do, but Layard says there are things that employers can do to improve happiness among employees:

• Allow workers to influence how work is organised;
• Reward team rather than individual performance;
• Appoint managers who can inspire and lead effectively;
• Run courses on wellbeing;
• Take mental illness seriously, with managers who can spot it and know where to get help.

Employee happiness isn’t the only gain here. Happy employees are likely to be more productive, more willing to go the extra mile for their employer. Greater productivity means greater profit. And that will make employers happy too.

You may remember that the Low Pay Commission reported to government back in Autumn 2019 and recommended increases to the national minimum wage and national living wage. The national living wage is the minimum pay required for workers who are aged 25 and older. It is a legal requirement to pay the national living wage where it applies rather than a choice.

From April 2020, these changes to minimum hourly rates will come into effect:

• NLW for workers age 25 and over – from £8.21 to £8.72 per hour;
• NMW for workers aged between 21 and 24 - £7.70 to £8.20;
• NMW for 18-20 year olds - £6.15 to £6.45;
• NMW for 16 and 17 year olds £4.35 to 4.55;

The NLW is expected to rise to £10.50 per hour by 2024. There are also plans to reduce the age at which the NLW applies from 25 to 23 by 2021, and to 21 within 5 years.

These pay rises, all of which are well over inflation, will add up. They will have a particular impact on small employers, especially in a time of economic uncertainty. The Federation of Small Businesses has said the wage hikes might result in lower recruitment, cancelled investment plans and redundancies. The BBC reports that businesses have urged the government to reduce costs elsewhere. Look out for further developments.

Employers must protect their workers from discrimination and harassment. An employer will be legally liable for harassment at work if they have not taken reasonable steps to prevent it. The Equality and Human Rights Commission has published some technical guidance on sexual harassment and harassment at work.

The guide is quite long at 84 pages but is very readable. It takes the reader though the legal definitions of harassment in relation to a range of protected characteristics such as race, age and sex. The section on harassment (section 2) is particularly helpful at demonstrating what harassment can look like at work. The guide also covers victimisation, the legal claim an employee can bring if they are treated badly by an employer after raising allegations of discrimination or harassment. Victimisation can play a role in employees not reporting harassment. The guide contains helpful examples, some of which are based on real cases.

The most useful part of the guide for employers is section 5 which sets out how to prevent and respond to harassment as an employer. It takes a tour through the importance of policies and procedures, including helpful guidance on what a good policy should contain. It also contains guidance on detecting harassment, assessing risks relating to harassment in the individual workplace and responding to harassment allegations when they are made. Read the guidance here:

https://www.equalityhumanrights.com/sites/default/files/sexual_harassment_and_harassment_at_work.pdf

Many employers automatically suspend an employee accused of misconduct while they investigate the allegations. Many employees don’t object. The employee in Harrison v Barking, Havering and Redbridge NHS Trust did object and brought a claim in the High Court to stop what she said was an unfair suspension.

The employee was Deputy Head of Legal Services. She was suspended from work due to allegations about her handling of a clinical negligence case. She wasn’t provided with the details and ended up going off sick with stress. The employer asked her to return to work on restricted duties. When she refused, she was suspended for failing to follow a management instruction. The employee brought a court claim for an injunction to stop the suspension and return to most of her normal duties. She said the employer's behaviour in suspending her breached the duty of mutual trust and confidence.

The High Court granted the injunction. There were strong grounds for arguing that the suspension breached mutual trust and confidence because there was no reasonable or proper cause for suspending her from most of her duties. The employer's arguments purporting to justify suspension – namely criticisms of the employee's work – came after the decision to suspend rather than before and no evidence had been provided.

Injunction proceedings are rare in employment cases. However, this case is a reminder that knee-jerk suspension decisions can come back to bite an employer. ACAS recommends that suspension should only happen in misconduct cases when the allegation is serious and when there has been a severe breakdown of the working relationship, or there is some other risk, such as the employee interfering with evidence or witnesses. Employers should always consider other options first, such as a temporary team move or different hours of work.

An employment tribunal has recently looked at indirect discrimination and how it applies to dress codes. Indirect discrimination is where an employer applies a policy or practice to all employees, but which negatively affects a particular group who share a protected characteristic (as well as the individual employee). The employer can defend an indirect discrimination claim by showing that the policy is justified as a proportionate means of achieving a legitimate aim.

In Sethi v Elements Personnel Services, the employee was a Sikh who adhered to Kesh, the requirement not to cut body hair. He was seeking work through a temp agency which worked with five-star hotels. The agency had a 'no beards' policy, on appearance rather than health and safety grounds, allegedly due to client demands. When he was told that he would not be given work unless he cut his beard, he brought an indirect discrimination claim.

The employment tribunal said that the 'no beards' policy which applied to everyone placed Sikhs in general, and the employee in particular, at a disadvantage. They said that the agency's aim of meeting client demands was a legitimate one. However, the blanket ban was not a proportionate means of achieving the aim. Instead, the agency should have put the employee on the books and sought specific exceptions based on his Sikh religion as and when required. The agency hadn’t even asked its clients whether they would make an exception for a Sikh worker. Not all the hotels had a no beard requirement anyway. The agency had indirectly discriminated against the employee.

Although this case doesn’t create new law, and isn’t binding on other employers, it is an important reminder about the potential pitfalls of dress and appearance codes. Employers must ensure that dress codes or appearance policies do not negatively impact on people who share particular characteristics in a way that cannot be justified.

A fair dismissal must be preceded by a reasonable investigation, to establish the facts of the case. The ACAS code says that the investigation might involve an investigation meeting but will sometimes involve the collection of evidence for use at the disciplinary hearing instead. The Employment Appeal Tribunal in Sunshine Hotels v Goddard has analysed what a reasonable investigation looks like.

The employee was accused of sleeping whilst on duty at the hotel. He was suspended pending an investigation. The investigation involved the manager watching CCTV footage of the hotel. The employee was sent a letter inviting him to an investigation meeting on 16 April, saying there would be a disciplinary hearing if there was any substance to the allegations. The 16April meeting turned out to be a disciplinary hearing at which the employee was dismissed. The employment tribunal said the dismissal was unfair because there had not been a proper investigation. The employer appealed because the employment tribunal appeared to suggest that a separate investigation hearing was required in every case for a dismissal to be fair.

The Employment Appeal Tribunal dismissed the appeal. The tribunal's decision was based on the lack of a proper investigation overall, rather than the lack of an investigation meeting. Looking at the CCTV wasn’t enough investigation. The employer could have walked the usual patrol route with the employee to see whether it naturally bypassed CCTV as the employee alleged. Whether that investigation took place by way of a meeting or another method was irrelevant, but neither were done in this case. The employee didn't know enough about the allegations at the outset of the disciplinary hearing to defend himself properly, not least because he thought he was attending was an investigation rather than a disciplinary hearing.

This case confirms that an investigation meeting is not always required, but an adequate investigation is. Employers must ensure that they gather all the relevant facts before any disciplinary hearing. In cases such as this, where someone is accused of misconduct and offers an explanation, those explanations should be investigated before any disciplinary hearing takes place.

The government has announced that parents will be entitled to bereavement leave from 6 April 2020 (subject to parliamentary approval). Employees who lose a child under the age of 18, or who suffer a stillbirth from 24 weeks of pregnancy, will be entitled to two weeks' leave. This leave can be taken in one block or as two separate weeks. This is a 'day one' right, with no need for a period of continuous employment to qualify for it.

Employees who have been employed for at least 26 weeks and whose average earnings exceed the lower earnings limit (currently £118 for 2019/2020) will also qualify for statutory parental bereavement pay (SPBP). SPBP will be calculated in the same way as paternity pay, which is £148.68 for 2019/2020, or 90 per cent of average weekly earnings if that is lower. Although many parents may choose to take this leave immediately after the death of a child, the regulations are likely to give parents up to a year to take this leave.

This right is the most generous in the world in relation to child bereavement, with only a few countries offering any bereavement leave at all. Most employers are already compassionate and flexible when an employee suffers such a devastating loss. The law is simply catching up with good practice.

Everyone's talking about veganism, and not just because of Veganuary. In January, an employment tribunal found that a vegan was protected from discrimination by the Equality Act 2010. The employee's ethical veganism met the legal test for a 'belief' which, like religion, can be a protected characteristic. In order to qualify for protection, the belief must:

• be a genuinely held belief rather than an opinion or viewpoint;
• be about a weighty or substantial aspect of human life;
• attain a certain level of cogency, seriousness, cohesion and importance;
• be worthy of respect in a democratic society.

In Casamitjana v The League for Cruel Sports, the employee's ethical veganism went beyond not eating meat or avoiding animal products. He avoided clothes, shoes and cosmetics containing animal products and sought clarification on ingredients from companies before using them. He walked rather than getting public transport because it was less likely to kill insects. He paid for items using cards or coins because bank notes contain animal products. He worked in animal protection and was heavily involved in animal rights activism. He only dated fellow vegans and did not allow non-vegan items in his home. He shaved using an electric razor powered by certified vegan friendly electricity. Based on these beliefs, the employment tribunal judge said that he was 'satisfied overwhelmingly' that ethical veganism was a philosophical belief. The employee can continue with his discrimination claim to fight against his dismissal.

Although this is being referred to as a landmark case, the effects of the decision are limited. Other courts and tribunals don't have to follow this employment tribunal judgment, as they would an appeal decision. An appeal is unlikely because the employer was prepared to concede the point (the judge rejected that offer and went on to make his own decision). Most importantly though, the employee's entire life – professional and private – was dedicated to ethical veganism in a more extreme manner than most vegans, even those who describe themselves as ethically vegan. Not all vegans will meet the legal test.

That said, employers need to be aware of the potential for veganism to be a protected characteristic and ensure that employees are respectful of other people's lifestyle choices. Ribbing a vegan colleague on the content of their packed lunch is probably now off the menu.

Valentine’s day is a day for sharing the love but should you share it in the workplace?

It’s been more than two years since the investigation into the sexual misdeeds of Harvey Weinstein unleashed the #MeToo movement against sexual harassment and sexual assault.

Employer’s obligations

Employers have a duty of care to protect their workers and will be liable for harassment in the workplace if they have not taken reasonable steps to prevent it.

Every 4^th February is World Cancer Day – a time when we can take a moment to consider the impact of this serious illness on people around the world. The theme of this year’s World Cancer Day is “I Am and I Will”. The focus is on the individual and on making a commitment to act to reduce the global impact of cancer.

 “I Am” leads to thoughts of all those employees affected by cancer.  If an employee suffers from cancer then they are disabled: under the Equality Act 2010, cancer is a deemed disability from the point of diagnosis. The employee will be protected from various types of disability discrimination.

However, protection from disability discrimination also extends to those associated with a person with cancer. For example, an employee whose wife has been diagnosed with cancer will benefit from protection under the equality legislation due to his association with a disabled person. It would be discriminatory to treat that employee less favourably because he has taken time off work to care for his ill spouse.

“I Will” urges us take action. For employers, the commitment to act where an employee has been diagnosed with cancer is recognised under the law in the duty to make reasonable adjustments. Where an employee is disabled, an employer has a duty to make reasonable adjustments to avoid the employee being put at a substantial disadvantage in the workplace when compared with a non-disabled person. A failure to do so would amount to disability discrimination.

For an employee with cancer, the Equality and Human Rights Commission suggests that a reasonable adjustment could be to allow the employee a period of disability leave so they can undergo treatment and rehabilitation. When the employee is fit enough to return to work, they may wish to work flexible hours to accommodate their health issues. It would a reasonable adjustment for their employer to permit them to do so.

An employee with a serious medical condition such as cancer will require ongoing support from their employer.

Reach out to the LexLeyton team for support in managing any of the issues raised here. We can assist with advice on how best to handle any challenges that an employee’s particular situation raises, provide policies and training on the complexities of dealing with disability in the workplace and a whole range of services to benefit management of a sustainable working environment legal@lexleyton.co.uk

For more on World Cancer Day, visit www.worldcancerday.org.

28 January is Data Privacy Day; ironically not something that is widely known.

Approaching two years since the inception of GDPR and its hard to escape the feeling that we are all just like Alice, tumbling down the rabbit hole into an all-encompassing dystopia.

Our smartphones notify us of the traffic between our location and destination, often before we set off.  We are asked to review meals we have or venues we visit, seemingly just by having our presence detected there. Our steps, heartrate and even our breathing is monitored from our pocket or handbag. Smart speakers and Smart TVs and Smart watches monitor and process and predict seemingly every facet of our daily lives.  At first the quirkiness may excite, yet the volume and depth of surveillance over our ‘private’ lives is not without a level of discomfort at times.  That much is incontrovertible.   Curiouser and curiouser.

Privacy in public

With such an arsenal of monitoring capability, legislation was absolutely imperative to answer questions around data privacy in the workplace. As a general rule, one cannot reasonably expect privacy in a public place. That said, the GDPR and Data Protection Act 2018 instilled a number of clear principles around how data is collected and managed at work.  Cases in the senior domestic and even European Courts examine the scope of an employer’s right to pry/supervise. Very often, the judgements in these cases are so fact specific, it is difficult to draw any absolute or general conclusions from them.

On the flipside, the Information Commissioner’s Office (ICO) routinely issues fines to UK businesses for misusing or failing to properly secure personal data. Cold calling is the example which comes to many minds, yet large businesses such as EE and Bounty (the pregnancy/maternity one, not the chocolate and coconut one) have received substantial fines from the ICO in the past 12 months.  Europe-wide, the problems and fines demonstrate a recurring theme.

Quite often, these fines are entirely avoidable through businesses seeking appropriate advice and taking necessary preventative steps. 

Making sure your business is ready

All businesses, of any size and sector, should have a Data Protection Policy.  Privacy notices issued are likely to address recruitment, employment, customer and contractor relationships. 

A level of expert training around GDPR, particularly in the context of human resources and management, is another increasingly common tool to prevent mishaps.

Make sure your contracts and staff handbook are regularly reviewed and updated.  From bespoke policies, privacy notices and tailored GDPR in HR training courses, we provide clarity and peace of mind.

For any UK businesses, if there is doubt about whether your business is ready, LexLeyton will provide a free review of your HR documentation and strategy to identify weaknesses in your data management. 

The worker status debate leached into the TUPE sphere towards the end of 2019. A 'worker' is defined by section 230(3) of the Employment Rights Act 1996 (ERA) as:

• An individual who…works under:
  • A contract of employment, or
  • Any other contract…where the individual undertakes to do or perform personally any work…for another party who…is not...a client or customer of…the individual.