Following miscommunication between a doctor and his secretary a report containing explicit details relating to a patient’s health was sent to someone with a similar name, and this represented a serious breach of the Data Protection Act.

An investigation by the Information Commissioner’s Office (ICO) found neither member of staff had received training in data protection and there were inadequate checks in place within the board to ensure personal information was only sent to the correct recipient.

This was a genuine and unintended individual error, and the board has apologised to the patient concerned.  However, it highlights steps that must be taken, including ensuring all staff are trained on the storage and use of data policies, regular monitoring of compliance with data protection and IT policies, and checking processes to confirm a patient’s identity before personal information is sent out.

We randomly selected two responses to our recent feedback request, and they will receive their prizes over the next couple of weeks.

Thanks to all of you who responded; it helps us to improve what we do.

The Taking on an Employee toolkit, explains the process of hiring their first member of staff and the core legal obligations.

This is the first step in a new online service for small businesses, which is based upon the requirement to make life easier for business.

Information about some common misconceptions about hiring a member  of staff is available too. This includes advice on registering with HMRC, anti-discrimination laws, dismissal rules, setting up payrolls and probation periods. The Business Link site will also have information about Government support, financial and otherwise, to encourage employers to take on their first employee.

This facility will be transferred to the .gov.uk domain later this year as Business Link moves to the new website.

If you have any concerns Hardwick HR can offer advice and guidance specific to your circumstances. 

It is too late to rectify deficient notices, but employers will still be concerned to know whether staff members who were served notice of retirement under the old rules were validly retired. Some such employees may still be in employment, and others may be awaiting the outcome of this decision, before deciding whether to pursue claims.

HR Bullets has a full Blog on this case here:

http://bit.ly/J10JYJ

Essentially, Teggart v TeleTech UK Ltd is a case that was won by the employer. They dismissed an employee (T) who posted nasty comments about a colleague on his Facebook page. Stating: ‘quick question who in Teletech has A not tried to f**k? She does get around!’. (This was followed by another offensive comment on Facebook when A asked T’s girlfriend to remove the initial comment.)

The original dismissal was on two counts. One was sexual harassment, the other was bringing the company into disrepute. The Tribunal found that the dismissal for sexual harassment was within the realms of reasonable responses, but that he had not brought TeleTech UK into disrepute. The evidence wasn’t there to support that assumption.

There have been a number of other cases, some have gone in favour of the employee, and some against. If you have a social media policy, you can use that as part of your evidence. You can demonstrate that you have communicated your expectations to your employees regarding their opinions about the workplace on Facebook, and that it is unacceptable to identify the company in a negative way. The Employment Tribunal is looking at what is procedurally and legally fair. It is not interested in our personal views of fairness and acceptability regarding issues such as negatively mentioning the workplace or a colleague.

The other reason that I will continue to nag my clients on this issue, is the number of times I have personally dealt with cases (up to cases in an Employment Tribunal) using Facebook evidence – including one this week. It is becoming increasingly common, and I am often asked whether disciplinary action or dismissal is appropriate after someone has read a comment. If you are going to investigate such issues, ensure the comments are printed off as soon as possible, as they are often removed once an individual has calmed down. Note how many friends the individual is in contact with, particularly if you are considering an allegation of bringing the company into disrepute. You will need to investigate thoroughly and carefully.

The point you need to convey to your employees and contractors is, that nothing on the internet is truly private. If they would not make a comment face to face, it is not appropriate to make it on a social networking site, even if they think it is just a conversation with their friends.

Next time, I’m going to look at the issue of using Social Networking for work purposes, and whether you can take “Twitter” followers with you……and is “Linked In” a recruitment tool for employees…….?

The Claimant worked under a standard contract, the relationship was generally understood in the industry to be one of self-employment. The Claimant worked on a rota; she was entitled to work when on the rota; and was paid by the Respondent for the ‘Heavenly Money’ vouchers (a money substitute) that she received from clients, subject to agreed deductions.

The EAT held that the Claimant was an employee. The Respondent had the right to control her activities when she was at work, and even though the Claimant worked under an ‘umbrella contract’ covering each separate engagement, the relationship gave rise to an expectation of continued engagement, and so there was sufficient mutuality of obligation for employment status.

Health and safety regulation was the top regulatory deterrent for the 1,000 respondents from businesses of all sizes, industry groups and regions.

The top 10 deterrants to employment were:

1. Health and safety

This was the top concern for employers overall, with 13% identifying it as the biggest recruitment deterrent; it was found to be of particular concern to micro-businesses.

2. Maternity/paternity leave

One organisation in 10 singled out maternity and paternity leave regulations as the biggest concern when taking on new recruits..

3. Tax

Tax was rated as a top deterrent when hiring by 8% of organisations, especially for micro-firms.

4. National minimum wage

6% of employers that rated NMW as their top concern when hiring staff. Small businesses were particularly concerned about this issue.

5. National insurance

On a par with the minimum wage, 6% of employers said that national insurance was a deterrent to taking on staff. Small and medium-sized businesses were the most concerned about this.

6. Employer’s liability insurance

Micro-organisations were the most worried about employer’s liability insurance and 5% of employers of all sizes identified it as a concern

7. Working Time Regulations

The seventh most worrying regulation identified by employers were the Working Time Regulations, with 5% ranking these as the top deterrent to taking on staff. Small and medium-sized companies were particularly worried about it.

8. Sickness absence

Sickness absence was another key issue for small and medium-sized businesses. Overall, 5% of employers said that sickness absence regulation put them off hiring.

9. Time off to train

Introduced in 2010, the right to request time off to train was considered a deterrent to hiring for 4% of employers, with small and medium-sized businesses particularly concerned about it.

10. Discrimination

Regulations around discrimination were a concern in businesses of all sizes. Overall, 3% rated these as the top barrier to taking on staff and, for employers with 251+ employees, these were the biggest regulatory concern.

Click here to see the full article by Personnel Today

However, the Supreme Court ruling in Seldon v Clarkson Wright and Jakes has held that an employer can force retirement in certain circumstances.

A senior equity partner in a law firm was told that the partnership deed required that any partner who reached the age of 65 must retire at the end of the year following his attainment of that age. Partners do not normally benefit from employment legislation as they are not employees of the firm, but the 2006 Regulations and the Equality Act 2010 specifically give Partners protection against discrimination the same as for employees and workers.

There was no issue that acting under this provision in the partnership deed was an act of direct discrimination.  However, the regulations do allow such treatment where it is a proportionate means of achieving a legitimate aim. The key issue the Supreme Court was asked to determine was whether that treatment could be justified. The actions must be shown to be appropriate and reasonably necessary in the context of the particular business concerned in achieving those aims, and there are not other, less discriminatory, measures which would do so.

Three legitimate aims were put forward by the organisation and accepted by the court: (1) staff retention, (2) workforce planning and (3) limiting the need to expel partners by way of performance management.

Following ECJ guidance these aims all came within the social policy objective as ‘inter-generational fairness’ and ‘dignity’.

This case is within a profession which is already over-subscribed and competition for jobs at junior and senior level is fierce.

As more cases are brought it will be interesting to see how the Tribunals and Courts react to employers in different industries who attempt to set a retirement policy.

A clearly worded Retirement Policy will help employers when dealing with retirement issues.

Compromise contracts allow an employer to reach a binding agreement with an employee, which prevents the individual from pursuing a discrimination claim against the organisation in return for a financial payment.

Under the legislation, the claimant is required to receive advice from an independent adviser before entering into a compromise agreement to ensure that vulnerable employees do not sign away their claim accidently or too cheaply.

However, shortly after the Equality Act came into force last October, it was argued that the original wording of the legislation made compromise agreements “unenforceable” because a claimant’s lawyer could not be considered to be an independent adviser.

The Government amendment came into force on 6 April 2012, to make it clear that someone acting on behalf of the claimant, such as their lawyer, can act as an independent adviser for a compromise agreement but someone who is acting on behalf of another party involved in the agreement cannot.

Section 147 of the Equality Act

Prior to the amendment, s.147 of the Equality Act said that “a person who is party to the contract or the complaint” is not an “independent adviser” in relation to a qualifying compromise contract.

The amendment of s.147 changes the wording to read that “a person (other than the complainant) who is party to the contract or the complainant” is not considered to be an “independent adviser to the complainant” in a qualifying compromise agreement.