Category Archives: Insight Article

Does an employer need to provide an employment reference?

An employer can provide an employment reference and decide on the amount of information they provide within the reference. Special circumstances may mean an employer is obliged to provide a reference. For example, when an agreed reference forms part of the terms of a settlement agreement or employers that are regulated by the Financial Conduct Authority or the Prudential Regulation Authority.

What must a reference include?

The reference can include basic facts such as job descriptions, answers to questions that the potential employer has asked, and any details about the applicant’s skills and abilities or strengths and weaknesses concerning the suitability of an applicant for the new role they have applied for.

Can a bad reference be given?

The reference must be ‘accurate’ and ‘fair’ and must not contain any ‘misleading’ or ‘inaccurate’ information.

What issues can arise with giving references?

Applicants can request a copy of the reference sent to the new employer if they wish.

It is usually best practice and safest for employers to have a policy about what references will cover. That way, employees know what to expect. It is generally safest to limit references to factual issues, such as the job applicant’s employment dates and job description. If an employer provides a reference for some individuals but not others, it could face allegations of discrimination, victimisation, or breach of trust and confidence. Employers also need to be mindful that there is no obligation within a contract with the employee to provide a reference.

Employers should record on an individual’s file whether or not the employee wishes the employer to provide a reference.

Suppose there is ever any doubt over whether or not an individual has given consent for an employer to give a reference. In that case, the employer should contact them to check whether they should provide the reference.

If a reference included information about an individual’s health, the employer would need the individual’s consent before disclosing that information.

For further advice on references or any other employment issue, speak to solicitor Karen Cole today.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

Under the Act, a “data subject” can make a data subject access request (a DSAR), and a “data controller” has a duty to comply, subject to some exceptions.

Although responding to a DSAR can be time-consuming and expensive, the obligations of transparency under the Act mean that you must be willing to explain how you are handling the request and to confirm this to the employee within the required time limit. If you do not, the employee may feel aggrieved and believe that you have failed to comply with the Act’s requirements, leaving you vulnerable to a potential complaint being made to the ICO or a court order to comply with the DSAR.

It is, therefore, important to respond to a DSAR in an appropriate manner.

What to do if you receive data subject access requests from employees

You should make an initial assessment to consider:

1. whether or not you store or process data concerning the employee;
2. whether you intend to respond;
3. the scope of the request; and
4. the proposed approach to finding the data and dealing with the response.

In general, regardless of any suspicions about the employee’s motivation, you should approach compliance in a positive and helpful way:

1. you must facilitate the exercise of the DSAR;
2. the request must be handled fairly and transparently;
3. information must be provided in a concise, transparent, intelligible and easily accessible form, using clear and plain language.

In the employment forum, DSARs are frequently made in the context of an ongoing dispute or a tribunal or court claim. An employee may be genuinely motivated by a wish to find out what data is being processed and to ensure that it is accurate. However, the employee may also see the trouble and expense to which you may be put by dealing with a DSAR as offering useful leverage in a dispute and in achieving a settlement.

Your response

Your response should be in writing or, if appropriate, by electronic means. If the request was made originally by electronic means, information should be provided “in a commonly used” electronic form unless otherwise requested by the employee. At the employee’s request, the information may be provided orally as long as you are certain of the identity of the individual making the request. However, oral requests are rare.

Except in perhaps very straightforward cases, it would be sensible to take legal advice before either substantively responding to a DSAR or indicating a refusal to deal with such a request.

Are there any exceptions to the DSAR?

Under the Act, there is no obligation to comply with a DSAR in relation to the following:

Legal

Personal data in respect of which a claim of legal professional privilege could be maintained in legal proceedings. This applies only to documents which carry legal professional privilege for the purposes of English law.

Reference

A reference given (or to be given) in confidence for employment, training or educational purposes. The exemption covers the personal data within the reference, whether processed by the reference giver or the recipient.

Management

Personal data is processed for the purposes of management forecasting or management planning in relation to a business or other activity to the extent that complying with a DSAR would prejudice the conduct of the business or activity. For example, it is likely to prejudice the conduct of a business if information on a staff redundancy programme is disclosed before it is announced to the rest of the workforce.

Records of Intent

Personal data consisting of records of intentions in relation to negotiations between the employer and employee to the extent that compliance with the DSAR would be likely to prejudice the negotiations.

Other

Other exceptions relate to regulatory functions, judicial appointments and proceedings, the honours system, criminal investigations, tax collections and various corporate finance services.

What happens if you do not respond to a DSAR?

Other than in exceptional cases, you will be under a duty to take action on a request by responding. There are, however, some circumstances in which you may decide not to take action. Examples might be where:

• the person to whom the DSAR was addressed is not the data controller (perhaps because it is acting as a data processor or someone else is the controller);
• the request is unfounded or excessive; and/or
• you can demonstrate that the request infringes the EU doctrine of abuse of rights.

If so, you must tell the employee without delay and, at the latest, within one month of receipt of the request. You must give reasons for not taking action. You must tell the employee of the possibility of complaining to the supervisory authority and taking legal proceedings.

Except in clear circumstances and in which you are confident you can justify a decision not to take action on a request (as might be the case if you are not the controller), you should engage with the employee and seek to limit the request.

For more information on data subject access requests, speak to employment lawyer Karen Cole today.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

A volunteer is anyone who carries out unpaid work for a charity, fundraising body or voluntary organisation. If you hire voluntary workers for your organisation, there are certain things you need to be aware of. If you happen to be a volunteer, it pays to know your rights, too. We’ve outlined some of the legalities to help you both stay on the right side of the law.

Do voluntary workers have a contract?

Although voluntary workers don’t have a contract of employment, most voluntary organisations provide volunteers with a ‘Volunteer Agreement’, which is similar to a job description. Organisations will want to avoid creating legally binding relations with volunteers that could give them worker or employee status. As such, volunteer agreements are generally short and informal in style, often phrased in terms of hopes and expectations rather than obligations. It should set out details of the organisation’s insurance cover, and any health and safety issues.

It should also outline any training you will receive as a volunteer, any expenses that will be covered, the level of support and supervision volunteers can expect to receive in their role, and how any disputes will be resolved. A volunteer agreement is not compulsory, however.

What expenses can volunteers be paid?

Volunteers are excluded from the National Minimum Wage requirements, but they can still be paid expenses such as the cost of travel, meals at work, etc. They may also be offered training, but it’s important to note that offering paid training that is not relevant to their volunteering role could mean they are classed as a worker or employee. Offering other expenses, for example, subsidised or free childcare at times when they are not volunteering, could also mean they will be classed as an employee or worker, rather than as a volunteer.

Expenses should normally be supported by receipts or a reasonable estimate. If volunteers receive any other payment, benefit or reward, they may be classed as a worker or employee and entitled to the national minimum wage. This could also apply if the organisation has promised them paid work in future. Volunteers are still eligible to claim benefits in most cases if they are only being paid expenses such as travel expenses.

What age should you be to volunteer?

There is no upper age limit in place to be a volunteer, but children under the age of 14 cannot work on a paid or voluntary basis for a profit-making organisation without special dispensation. In some cases, insurance companies may have age limits in place which may mean voluntary workers under the age of 16 or over the age of 80 are not covered.

What are your responsibilities as an employer?

There are certain legal responsibilities that you should be aware of if you are a charity or voluntary organisation employing volunteers. Firstly, you have an obligation not to discriminate when determining who to offer paid employment to. This means that you should not take into account volunteer performance when deciding whether or not to offer a voluntary worker a paid job.

Volunteer workers are covered by government health and safety legislation and you have a responsibility to resolve any health and safety issues. Employers must also protect personal data and ensure that consideration has been given to both the personal data of the volunteer and what access (and why) the volunteer may have to personal data held by the organisation generally.

Insurance cover

All organisations employing volunteers must have professional indemnity cover in place. This will cover you if a volunteer becomes injured and makes a claim or if a claim is brought against you because of the actions of a voluntary worker. You should have a specific procedure in place to deal with volunteer grievances or disciplinary issues that may arise.

Bear in mind that even if you only use volunteer workers, you will still need to have compulsory Employer’s Liability Cover by law.

Finally, if your volunteers work with children or vulnerable adults, you may also need to carry out a CRB check to ensure that they are fit to do so.

If you hire voluntary workers, or you are a volunteer talk to employment lawyer Karen Cole today.

Note: This is not legal advice; it provides information of general interest about current legal issues.

According to a poll commissioned by office furniture supplier Kit Out My Office, more than two-thirds of UK office workers have admitted to stealing from their employers and colleagues at some time during their careers. With the cost of stolen items averaging at £12.50 and an estimated 15 million workers having confessed to employee theft, the cost to UK employers adds up to £190 million each year. For employers, dealing with employee theft can be a difficult process. What should you do if you suspect one of your workers is stealing from your business?

Suspicion vs facts

Theft of any sort is a serious accusation to make. If, as an employer, you suspect an employee of theft, then obtaining evidence is a crucial part of the procedure. Evidence may prove your suspicions to be wrong, or they may prove them to be right. However, making an accusation of employee theft without substantial proof can leave you open to litigation. Suspicion is one thing. Solid facts are another.

Conducting an investigation

Many employers are unaware that they have a legal right to launch an investigation should they suspect an employee of stealing. The investigation must be seen to be fair and based on evidence alone. It is crucial that any investigation is also reasonable. Should the case reach an Employment Tribunal or result in the employee’s dismissal, the presiding judge will need to see a demonstration of fairness and impartiality.

The first step is to appoint an investigator. This can be someone within the office or, if it is appropriate, an external party. Your company likely has specific policies on tackling issues of this sort. However, if not, the chosen investigator should be briefed on certain aspects of the inquiry, including:

• a timeframe in which to conduct the research;
• guidelines on their responsibility as an investigator;
• how their evidence will be presented;
• minimising the investigation’s impact on employees’ morale; and
• minimising the investigation’s impact on the day-to-day running of the business.

It is worth remembering that, ultimately, the employer bears full responsibility for the investigation’s manner, fairness and impartiality. CCTV can be an important tool in uncovering the truth of the matter, as can computer records. The chosen investigator should be given access to both.

Following up on the results of the investigation

If the evidence proves the employer’s suspicions to be groundless, then the situation should finish there. Should the employee become aware that they are or have been investigated, the best procedure is complete transparency. If appropriate, you might need to present them with the evidence that presented the grounds for suspicion.

If the investigation provides firm evidence of employee theft, you must decide what to do next. Most companies have protocols and procedures to follow. As a rule of thumb, the next step is to report the findings and present the proof to the company’s legal advisor. Smaller companies, who may not have representatives of this sort, are advised to seek the services of an employment lawyer. It is crucial to take advice at an early stage to ensure the disciplinary procedure is handled properly.

Interviewing the accused

Reporting employment theft to the police is at the employer’s discretion. This can result in criminal proceedings and either a financial fine or, in some cases, a prison sentence. However, most cases of employee theft are dealt with internally, either resulting in disciplinary action or dismissal.

Prior to any action being taken, it is strongly advised that the accused is interviewed. This gives them the opportunity to give their side of the story and is part of the process of fairness and impartiality. The interview should be conducted calmly and reasonably, and evidence supporting the accusations should be presented. Should the theft be proven, the employer should consult a legal advisor once again.

While it might seem a long road to take, riddled with procedure and red tape, ensuring that your investigations follow the appropriate guidelines and advice is as much a protective measure as it is the path to bringing a thief to justice.

Speak to employment lawyer Karen Cole today if you have concerns over theft at work.

Note: This article is not legal advice; it provides information of general interest about current legal issues.