by Emma | Apr 16, 2018 | Newsletter
As with all processing of personal data, in order to market your goods and services, the GDPR requires that your organisation has a lawful basis for such processing. Consent must be unambiguous and given either through a statement or clear affirmative action. It cannot be inferred from silence, pre-ticked boxes or inactivity.
The GDPR requires organisations to be transparent with individuals about what they are using their data for, how it might be shared, the legal basis for processing their data, and how long it will be kept.
If your organisation is sending unsolicited direct marketing by electronic means then you must comply with PECR (as well as the GDPR).
PECR
As set out above, electronic means include telephone calls (both live and automated), faxes, emails, text messages and other forms of electronic message. In addition to the sale of products and services “direct marketing” also covers the promotion of aims and ideals. Different rules apply to different types of communication, and also depend on whether your organisation is marketing to an individual or a business.
Business to individual customers marketing
Telephone
If you are marketing by telephone and on the condition that the individual is not listed on the Telephone Preference Service (TPS) you can call without consent as long as that person hasn’t objected to your calls in the past. On the contrary, in relation to automated calls, you must first obtain specific consent before undertaking any marketing using this method.
Texts and emails
PECR makes it clear that organisations must not send marketing texts or emails to individuals without their specific prior consent. However, there is a limited (but useful) exception for previous customers which is known as the “soft opt-in”. The soft opt-in applies where an individual bought something from your organisation recently and during that process gave you their details and did not opt out of marketing messages. In that regard it can be concluded that they are probably happy to receive marketing from your organisation about similar products or services even if they haven’t specifically consented. However, it is important to give them a clear chance to opt out (both when you first collected their details, and in every message you send).
Accordingly, whilst the soft opt-in rule means you may be able to email or text your own customers it does not apply to new customers or contacts.
Faxes
In the event that your business wants to market via fax then the consumer must have given specific consent.
Business to business marketing
It is important to remember that when marketing to sole traders or partnerships, the rules governing Business to individual customers apply (as set out above).
Telephone
As with individuals, organisations can market using live calls as long as the target is not a member of the Corporate Telephone Preference Service. In relation to recorded calls, the individual within the business must have given their specific consent.
Emails or texts
Whilst PECR allows you to market to an organisation by email or text it is good practice to provide an opt out option. Further, individual employees can explicitly opt out.
Faxes
Organisations can send marketing faxes to companies (or other corporate bodies) without consent, unless the fax number is listed on the Fax Preference Service (FPS).
by Emma | Apr 3, 2018 | Newsletter
Wagamama issues branded t-shirts out to all staff members, but asks that they team them with black skirts or trousers, which they have to pay for themselves.
Making staff pay for the uniform themselves was in breach of national minimum wage legislation.
(However, if the employee chooses to buy additional items that won’t reduce the minimum wage.)
If you have any questions regarding your dress code, or would like a dress code then please contact us now.
by Emma | Mar 26, 2018 | Newsletter
Maternity pay is rising to £145.18 from April 2018.
Also on 1 April 2018, the rates of statutory paternity pay and statutory shared parental pay will go up from £140.98 to £145.18 (or 90% of the employee’s average weekly earnings if this figure is less than the statutory rate).
The rate of statutory adoption pay will increase from £140.98 to £145.18.
This means that, from 1 April 2018, statutory adoption pay is payable at 90% of the employee’s average weekly earnings for the first six weeks, with the remainder of the adoption pay period at the rate of £145.18, or 90% of average weekly earnings if this is less than £145.18.
Statutory sick pay is also increasing from £89.35 to £92.05. This increase is expected to occur on 6 April 2018.
by Emma | Mar 24, 2018 | Newsletter
The government have recently scrapped the fit for work programme that supported long-term sickness. The scheme was introduced in 2015 and will be scrapped by 31st March 2018.
The scheme was a free GP-led service that offered impartial advice to employers, where the employee was off sick for four weeks or more. However, 65% of doctors have not referred a single person under the scheme.
With employees losing an average of 30.4 productive days a year through sickness absence and under performance because of ill health, how is your business handling absence?
At ECHR we can assist you with developing an absence management policy and programme, review and manage your employees on long term sick and work with you to reduce absence in your business.
by Emma | Mar 5, 2018 | Newsletter
Minimum wage increase from 1st April 2018:
- The national living wage (25 and over) will be £7.83 (previously £7.50).
- The standard adult rate (21 to 24) will be £7.38 (previously £7.05).
- The development rate (18 to 20) will be £5.90 (previously £5.60).
- The young workers rate will be £4.20 (previously £4.05).
- The apprenticeship rate will be £3.70 (previously £3.50).
Other changes from 6th April:
- The limit on the compensatory award will rise from £80,541 to £83,682.
- The limit on a week’s pay will increase from £489 to £508.
- Guarantee pay will increase from £27 to £28 per day.
PILONs in contract? – changes from 6 April 2018
From 6th April 2018, all payments in lieu of notice (PILONs) will be subject to tax, and National Insurance contributions. Termination payments will continue to be exempt up to the first £30,000.
Changes due April 2019
The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) Order 22018, is due to come into force on 6 April 2019. Different figures will have to be provided on a payslip, where an employee is paid a different rate of pay for different types of work.
Before the order comes into force employers will have to:
- Ensure that payroll processes are adjusted to collect the new information required; and
- Amend the format of their payslips to include this new information, where appropriate.
Employees on stand-by paid work?
A retained firefighter in Belgium, was required to remain contactable and, if necessary, report to the fire station within eight minutes when he was on stand-by. Time spent on stand-by was unpaid.
The European Court of Justice observed that where a worker is required to be physically present and available at a place determined by the employer, this will constitute working time. In this case he was not simply required to be contactable while on stand-by, he was obliged to respond to calls within eight minutes and therefore be physically present at a place determined by his employer.
These constraints limited his opportunities to pursue personal and social interests and therefore the time spent on stand-by had to be regarded as working time.
Where a worker has limited opportunity to pursue personal or social activities during on-call time spent at home, then the time must be working time
Pregnant employees
A decision made by the European Court of justice confirms that employers will have to know about a worker’s pregnancy in order to face claims for discrimination on grounds of pregnancy. It remains the case that an employer dismissing an employee on the basis that she might be or might become pregnant (whether or not she is) will have committed an act of direct sex discrimination.
Agency Worker rights
The Employment Appeal Tribunal has that Angard Staffing Solutions Ltd breached Regulation 5 of the Agency Workers Regulations 2010, when it provided an agency worker with 28 days’ holiday and half-hour rest breaks when permanent employees were entitled to 30.5 days’ holiday and rest breaks of an hour. In doing so it rejected an argument that the agency worker’s higher rate of pay offset his inferior holiday entitlement.
Under the regulations a term-by-term approach is required when it comes to a comparison between agency workers with 12 or more weeks’ service and their permanent counterparts. It will not be possible to offset a failure to match certain terms with enhanced terms elsewhere.
Payroll data leaked!
Morrisons were found liable for the actions of a disgruntled employee who leaked the payroll data of about 100,000 employees to damage the employer.
Although the judge found that Morrisons had adequate internal controls in place to protect employee data, he still held that Morrisons should take secondary liability for the breach because there was a sufficiently close connection between the employee’s acts and his employment – even though his acts were intended to damage his employer.
GDPR!
If you haven’t already heard about this by now, on 25 May 2018, the General Data Protection Regulation (GDPR) will be the applicable law in the EU on the processing of personal data and free movement of data, replacing the Data Protection Act 1998 in the UK.
Under the GDPR an organisation can face administrative fines of up to €20 million or 4% of the group’s total worldwide annual turnover, whichever is higher. This is significantly more than the current maximum fine of £500,000. In determining whether a fine should be imposed and the amount of the fine, supervisory authorities are expected to consider a number of criteria including:
- the nature, gravity and duration of the infringement taking into account the nature, scope or purpose of the processing concerned as well as the number of people affected and the level of damage suffered by them;
- the intentional or negligent character of the infringement;
- any action taken by the data controller or processor to mitigate the damage suffered by people;
- the degree of responsibility of the data controller or processor taking into account technical and organisational measures implemented by them pursuant to Articles 25 (data protection by design and default) and 32 (security of processing);
- the degree of co-operation with the supervisory authority, in order to remedy the infringement and mitigate the possible adverse effects of the infringement; and
- the manner in which the infringement became known to the supervisory authority, in particular whether, and if so to what extent, the data controller or processor notified the infringement.
A worker is entitled to a single uninterrupted rest period of 20 minutes
The EAT has held that compensatory rest has to be taken in one uninterrupted period and that a series of short breaks could not be aggregated to amount to the required time.
Network Rail allowed rest breaks to be taken “between periods of operational demand when there are opportunities for ‘naturally occurring breaks'”. It provided that the 20-minute break could be an aggregate of short breaks taken over the course of a shift.
The EAT held that this practice was unlawful. It is the length of the individual break that is crucial and it is not open to employers to decide otherwise on the basis of their views as to what health and safety requires in a particular case.
Hidden Cameras violated privacy rights
The European court of Human Rights has held that an employer’s decision to install hidden video cameras to monitor suspected thefts by a number of supermarket cashiers violated the cashiers’ privacy rights.
Guidance published in the UK makes it clear that it will be rare for covert monitoring of employees to be justified and that it should only be done in exceptional circumstances.
Taylor Review
Following the Taylor review, the government proposals include the following:
- Enforcing vulnerable workers’ holiday and sick pay.
- Ensuring that all workers (including casual and zero-hour workers) have day-one rights, including holiday and sick pay entitlements and a new right to a payslip.
- Providing a right for all workers to request a more stable contract, providing more financial security for those on flexible contracts.
The government states that it will seek to protect workers’ rights by:
- Taking further action to ensure unpaid interns are not doing the job of a worker.
- Introducing a new naming scheme for employers who fail to pay employment tribunal awards.
- Quadrupling employment tribunal fines for employers showing malice, spite or gross oversight to £20,000 and considering increasing penalties for employers who have previously lost similar cases.
Other measures proposed include:
- Providing all agency workers with a clear breakdown of who pays them and any costs or charges deducted from their wages.
- Asking the Low Pay Commission to consider the impact of higher minimum wage rates for workers on zero-hour contracts.
- Defining “working time” for flexible workers who find jobs through apps or online so they know when they should be being paid.
- Making sure that new and expectant mothers know their workplace rights and raise awareness amongst employers of their obligations.
More updates on this, as soon as we have them.
by Emma | Mar 2, 2018 | Newsletter
- The national living wage (25 and over) will be £7.83 (previously £7.50).
- The standard adult rate (21 to 24) will be £7.38 (previously £7.05).
- The development rate (18 to 20) will be £5.90 (previously £5.60).
- The young workers rate will be £4.20 (previously £4.05).
- The apprenticeship rate will be £3.70 (previously £3.50).
