The document summarizes an HR seminar presented by James Lynas of Winckworth Sherwood on employment law updates. The seminar covered key topics around the General Data Protection Regulation (GDPR) going into effect in May 2018 including consent requirements, lawful processing grounds, subject access requests, and new data subject rights. It also provided an overview of recent discrimination case law related to disability, religious, pregnancy, marriage, and agency worker discrimination.

1. TPP HR Seminar
Employment Law update
Wednesday 14th March 2018
#TPPHR18

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www.tpp.co.uk
www.tpphr.co.uk
@TPPHR
#TPPHR18

5. #TPPHR18
James Lynas, Partner
Winckworth Sherwood
Specialist in employment law since
1995

6. HR Seminar – Employment Update
14 March 2018

7. General Data Protection Regulation

8. Where are you?
73 Days to go to 25 May 2018
Data Mapped?
Contracts reviewed?
Fair Processing Notices reviewed?
Policies updated?
DPO appointed?
Introduction:

9. A. Consent
“You consent to the employer processing both
electronically and manually any data which relates to you
for the purposes of the administration and management of
its employees and its business and for compliance with
applicable procedures, laws and regulations and in
particular to the processing of sensitive personal data (as
defined in the Data Protection Act 1998).”
This cannot be relied on anymore!
9

10. Strict requirements for consent under GDPR
Clear affirmative action
Freely given, informed, specific and unambiguous and for specified
purposes
Presented in a manner which is clearly distinguishable from other matters,
in an intelligible and easily accessible form, using clear and plain language
Must be as easy for an employee to withdraw consent (at any time) as it is
to give
ICO’s view is that employers are unlikely to be able to show that consent
was “freely given”.
10

11. Lawful Processing
Necessary for the performance of the employment contract
Necessary for compliance with a legal obligation
Legitimate interests of the employer except where overridden by the
rights/interests of the employee
11

12. Legitimate Interests
Involves proportionality test
Employee may object to the processing of their data under this ground
Need to explain what the interests are to the employee if relying on this
ground
N.B. This ground does not apply to public authorities in the performance of
their tasks
12

13. Fair Processing or Privacy Notices
Should be provided at the point of collection of the data explaining:
Source of the data
Who will receive it
The intended purposes of the processing and the legal basis for the
processing
The period for which data will be stored
The existence of the data subject rights
The rights to object, withdraw and complain
If relying on the legitimate interests ground, what the legitimate interests
are
13

14. What steps should you take to prepare?
Data mapping exercise:
To establish what data is processed, why and for how long and who that
data is shared with and why
To analyse which legal grounds apply to each category of data collected
Draft fair processing notices
Review employment contracts, handbooks and policies
14

15. B. Subject Access Requests
15

16. Subject Access Requests
Fees and Onerous SARs
£10 fee will be abolished
Can charge the administrative cost of providing further copies of the same
information
If a request is “manifestly unfounded or excessive”, particularly because of
its repetitive character:
A reasonable fee can be charged; or
The employer can refuse to act on the request
16

17. What is changing Under the GDPR?
Time Period
SARs have to be complied with “without delay” and within one month
There is a possible extension of up to two further months for complex
requests
Employers have to tell employees within the first month if they are relying
on the extension and explain the reason for the delay
17

18. C: New data subject rights
“Delete it, freeze it, correct it…”
Key data subject rights:
Right to rectification
Right to erasure (…to be forgotten)
Right to restrict processing
Right to object to processing
Ensure that these are communicated and that operationally the business is able to comply
Important: Right to data portability
18

19. Data subject rights: rectification
Right to rectification (Article 16)
Data controllers must ensure personal data is accurate; kept up to date; and
erased or corrected without delay
Employee right to: correct inaccurate data; and complete incomplete data
Must respond within one month (two, if complex)
Inform third parties of the rectification
19

20. Data subject rights: erasure
Right to erasure (‘…to be forgotten’) (Article 17)
Applies if (for example): no longer necessary for the purposes obtained;
consent withdrawn and no other legal basis applies; or processed unlawfully
Data controller must erase without delay, unless retention is necessary (for a
limited number of statutory reasons – including to comply with a legal
obligation, for the defence of legal claims)
Take reasonable steps in relation to personal data processed by third parties
20

21. Data subject rights: restrict processing
Right to restrict processing (Article 18)
Applies where: processing is unlawful; the individual contests accuracy or
objects to processing; or they need the information for a legal claim (even if
you, the data controller, no longer need the information)
Review requirements to enable restriction of lawful processing
Inform third parties of the restriction
21

22. Data subject rights: object to processing
Right to object to processing (Article 21)
Inform individuals of the right ‘at the first point of communication’
Right to object to processing if basis asserted for lawful processing is
‘legitimate interests’ or ‘public interest’ grounds
Stop processing, unless: you can establish ‘compelling legitimate grounds’
for processing, which override the rights of the individual; or exercise of legal
claims
22

23. Workplace Discrimination
Case Law Update

24. Disability Discrimination
Government Legal Service v Brookes (28 April 2017)
B, a law graduate, had Aspergers
GLS recruit using a multiple choice test
B asked to provide narrative answers
GLS declined, offered extra time
B scored 12/22 – pass mark 14
B sued for indirect discrimination and failure
to make reasonable adjustments
B won at Tribunal and on appeal
£860, apology and change in process

25. Disability Discrimination
United First Partners v Carreras – Court of Appeal
C claimed indirect discrimination on basis of PCP that he was required to
work long hours
ET dismissed claim saying required meant “coerced” and there was no
evidence he was forced to work late
EAT and CA overturned ET – his case was really that he felt pressured to
work late and “required” could encompass

26. Disability Discrimination
Lofty v Hamis (18 January 2018)
L dismissed following sickness absences – some related to treatment for
lentigo malinga - called “pre-cancerous”
Equality Act deems cancer to be disability regardless of adverse effect
ET decided as “pre-cancerous” it wasn’t cancer so not a disability
EAT overturned this – cancer cells in top layer of skin – not yet invasive
but still cancer “pre-cancerous” is misleading medical short-hand in
context of skin cancer.

27. Religious Discrimination
Trayhorn v SoS Justice (1 August 2017)
Know ye not that the unrighteous shall not inherit the Kingdom of God?
Be not deceived: neither fornicators, nor idolaters, nor adulterers, nor
effeminate, nor abusers of themselves with mankind, nor thieves, nor
coveters, nor drunkards, nor revilers, nor extortioners, shall inherit the
Kingdom of God. And such were some of you: but ye are washed, but ye
are sanctified, but ye are justified in the name of the Lord Jesus, and by
the Spirit of our God.
Corinthians 6: 9 – 11

28. Sex Discrimination
Ali v Capita Customer Management (16 March 2017)
Women entitled to 14 weeks full maternity pay and then 25 weeks SMP.
Men entitled to 2 weeks full paternity pay and then 26 weeks leave paid
discretionary basis.
A’s wife had post-natal depression and advised to return to work – he
wished to take care of daughter
C told A he could have shared parental leave but only paid at stat rates.
ET decided A was directly discriminated against.
On appeal to EAT

29. Pregnancy Discrimination
Really Easy Car Credit v Thompson (3 January 2018)
T, telesales operator
Decided to dismiss in probationary period for emotional volatility and not
fitting in with work ethic
Next day, before they told her of decision, she told them pregnant
The next day they gave her dismissal letter
ET said emotional volatility clearly p/f pregnancy related, burden of
proof passed and in absence of reason then it was unlawful disc but not
unfair dismissal
EAT overturned discrimination decision – not at all certain emotional
outburst related – sent it back to new ET

30. Marriage Discrimination
Gould v Trustees of St John’s Downshire Hill (5 October 2017)
Church minister had marital difficulties
Leadership expressed concerns on impact on his ministry
Dismissed for breakdown in trust and confidence
Sued for marriage discrimination under Equality Act
ET had dismissed claim as relating just to marital difficulties and not fact of
marriage itself
EAT overturned ET – the only reason marital difficulties were significant to
church was because there was a marriage – sent back to ET.

31. Agency Worker Discrimination
Kocur v Angard Staffing Solutions (23 February 2018)
K supplied by ASS to Royal Mail
K worked over 12 weeks so entitled to same basic working conditions.
K had 28 days holiday, paid £10.50 ph &paid for half of 1hr break
Royal Mail employees had 30.5 days, paid £9.60 ph & paid for all 1hr break
K sued for equal treatment
ET dismissed claims saying had to be looked at as a package
EAT overturned ET – “the same” means “at least the same” – so K had to
have at least 30.5 days paid leave and be paid for all of 1hour rest break

32. James Lynas
Partner
jlynas@wslaw.co.uk
020 7593 5175
SOLICITORS AND
PARLIAMENTARY AGENTS
Minerva House
5 Montague Close
London, SE1 9BB
DX 156810 London Bridge 6
020 7593 5000
020 7593 5099
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THANK YOU

33. Thank you
020 7198 6140
www.tpp.co.uk
www.tpphr.co.uk
@TPPHR
#TPPHR18