Employment Law Brief | February 2019

Welcome to the latest edition of our monthly employment newsletter. We keep track of the latest employment law changes so you don't have to!

• Are your employees allowed to work in the UK?
• When does the duty to make reasonable adjustments arise?
• Are your employees breaching the GDPR?
• Can an allegation that colleagues are defaming you lead to whistleblowing protection?
• Should women have greater protection when returning from maternity leave?

If you wouldlike to discussany of the issues raised below, please don't hesitate to contactLiz HenryorJames Austin

Are your employees allowed to work in the UK?

Employers are expected to check whether their employees are allowed to work in the UK.This has previously required obtaining various documents from employees and retaining copies of those documents.

From Monday 28 January 2019 employers will be able to rely solely on an online check carried out using the Home Office's Right to Work Checking Service, provided the employee/prospective employee has an immigration status that can be checked on the service. The system works by allowing the individual to check their details on the Home Office service then provide a "share code" with their prospective employer. In essence the employer then has to:

1. check the Home Office service confirms the individual is entitled to do the work in question (this can be done on the 'View a job applicant's right to work details' page on gov.uk);
2. satisfy itself that any photograph on the online right to work check is of the individual presenting themselves for work; and
3. retain a clear copy of the response provided by the online right to work check (storing that response securely, electronically or in hardcopy) for the duration of employment and for two years afterwards.

When does the duty to make reasonable adjustments arise?

In order for someone to satisfy the Equality Act's definition of disability they have to have a physical or mental impairment which has an adverse effect on their ability to carry out normal day-to-day activities and the effect of the impairment must be substantial and long-term. Long term is taken to mean that it has lasted or is likely to last for 12 months or more. If an employer has either actual or constructive knowledge that an employee is a disabled person they are under a duty to make reasonable adjustments to assist the employee to carry out their job.

In Lamb v The Garrard Academy, Mrs Lamb was a teacher who told her employer that she was suffering from PTSD on 18 July 2012. The school argued that Mrs Lamb didn't satisfy the definition of disability until a year had passed from her first exhibiting PTSD symptoms (i.e. 21 November 2012) and accordingly there would be no requirement to make reasonable adjustments for her until then. The tribunal agreed with the school. The Employment Appeal Tribunal (EAT) overturned the decision. It held that the school had actual knowledge of her disability from 18 July 2012, when she had told them about it. The EAT also held that the school would have had constructive knowledge from early July, i.e. they knew enough to believe that she was disabled at that point. Accordingly the duty to make reasonable adjustments arose in early July 2012, not once the employee had actually been ill for 12 months.

So, if you are aware that an employee has a condition which is likely to last for 12 months or more and satisfies the remainder of the definition, a duty to make reasonable adjustments may arise at that point.

Are your employees breaching the General Data Protection Regulation ('GDPR')

Possibly. 64 per centof 1,002 workers surveyed stated they had forwarded customer emails to their personal email accounts in the first four months after the introduction of the GDPR. 84 per cent did not believe they were acting wrongly because there wasn't any malicious intent. The figures come after earlier research showed that 55 per cent of UK businesses were in breach of GDPR rules for failing to have official procedures in place for disposing of IT equipment.

ContactJames if you don't have procedures which set out what employees can and cannot do in respect of personal data the company stores.

Can an allegation that colleagues are defaming you lead to whistleblowing protection?

The EAT in Ibrahim v HCA International Ltd, found that it could. Mr Ibrahim alleged that his colleagues were falsely blaming him for breaches of confidentiality. His allegation was that he was effectively being slandered. As slander is a breach of a legal obligation, reporting such behaviour could be a protected disclosure resulting in whistleblowing protection, provided the employee believed the disclosure to be in the public interest.

Should women have greater protection when returning from maternity leave?

Employees on maternity leave already have greater protection than their colleagues when it comes to redundancies. If a woman on maternity leave is selected for redundancy, she must be given priority over other redundant employees when the employer offers suitable alternative employment. The Government has published a consultation paper asking for comments on a proposal to extend this right to women who have returned from maternity leave in the previous six months, not just those who are currently on maternity leave. The right could also be extended to women who have told their employer that they are pregnant but are not on maternity leave.

As always, we'll let you know if the proposals become law.

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