July 25, 2020

See our latest updates over employment Law and Health & Safety.

Employment Law Updates.

Covert recording in the workplace.

Case law and anecdotal evidence suggests that some employers and employees are engaging in covert recording. While the individuals concerned may believe they have good cause for covert recording, doing so raises a myriad of different issues concerning data protection, privacy and confidentiality, among other things.

Many employers openly carry out monitoring to safeguard workers and to protect their own interests or those of their customers. For example, CCTV monitoring may take place to ensure that those who work in hazardous environments are not being put at risk through the adoption of unsafe working practices. In other cases, an employer may be under legal or regulatory obligations which it can only realistically fulfil if it undertakes some monitoring, such as recording telephone calls with customers. This is particularly true in certain sectors such as financial services and healthcare.

This kind of monitoring will invariably involve processing ‘personal data’ within the meaning of Article 4(1) GDPR, and so will only be lawful if ‘controllers’ (here, employers and their employees as their agents, when acting within the scope of their duties as an employee) comply with the GDPR, as supplemented by the DPA 2018. Article 4(2) and S.3(4)
DPA 2018 make it clear that recordings are covered by the concept of ‘processing’.

Lawful bases for processing: ‘special categories of personal data’

Where ‘special categories of personal data’ are being processed, the employer must identify a lawful basis for general processing under Article 6 and satisfy at least one of the ten conditions specified under Article 9(2). Five of these require a controller to meet additional conditions and safeguards set out in Schedule 1 to the DPA 2018, and in many cases, controllers will also need to have an ‘appropriate policy document’ in place. In certain circumstances, for example where there is large scale processing of special categories of personal data, a data protection impact assessment (DPIA) is required. Many of the Article 9(2) conditions mirror or are closely connected to the lawful bases set out in Article 6, but with the added requirement to have suitable and specific measures in place to safeguard the rights and freedoms of the data subject. The conditions include that processing is necessary for any of the following:

  • Carrying out obligations and exercising specific rights of the controller or of the data subject in the field of employment law
  • The establishment, exercise or defence of legal claims;
  • Reasons of substantial public interest;
  • The assessment of the working capacity of the employee;
  • Reasons of public interest in the area of public health; and
  • Archiving purposes in the public interest, scientific or historical research purposes or statistical purposes.

Covert recording: points to consider: –

Employers should refrain from covertly recording routine meetings, including grievance and disciplinary hearings. Covert monitoring should only take place in exceptional circumstances, otherwise an employer may be in breach of the GDPR, the DPA 2018 and the Investigatory Powers Act 2016;

  • Covert recording will often infringe an individual’s right to privacy under Article 8 ECHR, subject to justification in limited circumstances;
  • Generally, covert recording will be inappropriate (and often unlawful) where the necessary information can be obtained by alternative means;
  • Before carrying out covert recording, employers may need to undertake a data protection impact assessment to document the specific need being addressed, and why covert recording is proportionate to meeting that need;
  • Covert recording should be sanctioned by senior management;
  • When covert recording is carried out, it should be strictly targeted and limited in time.;
  • Covert recording could give an employee grounds for claiming constructive dismissal and, possibly, a civil action for breach of privacy; and
  • Employers should consider the risk of reputational damage and the negative impact on employee engagement should it emerge that covert recording has taken place.

Workplace support for survivors of domestic abuse.

The Department of Business, Energy and Industrial Strategy (BEIS) has launched a review of employment rights for survivors
of domestic abuse. The review will look at options to improve the workplace for survivors, including how employers can help tackle economic abuse, such as by paying wages to a different bank account or making emergency salary payments available for those in real financial hardship.

BEIS will explore examples of best practice from employers within the United Kingdom as well as the approach taken in other countries, to see how the UK’s current employment framework could be enhanced.

To start the review process, BEIS has made a call for evidence on the specific employment needs of domestic abuse survivors, and how they are met by current employment rights and practices. The deadline for submissions is 9 September 2020 and the review will report by the end of 2020. The following questions are being posed:

  • What practical circumstances arise in relation to domestic abuse and work?
  • What support can be offered in the workplace for victims of domestic abuse?
  • What is possible with the existing framework?
  • What does current best practice look like?
  • What is the potential to do more?


Changes by reason of transfer void even if beneficial.

Ferguson and ors v Astrea Asset Management Ltd, EAT

The EAT holds that a contractual variation made by reason of a TUPE transfer is void even if it is beneficial to the employee. Thus, four company directors who agreed to vary their own employment contracts to their advantage two months before a service provision change were unable to rely on the varied terms in their subsequent claims against the transferee for unlawful deductions from wages. The EAT further holds that, had the variations been otherwise valid under TUPE, to allow the directors to rely on the varied terms would be an abuse of EU law. The purpose of the EU Acquired Rights Directive is to safeguard employees’ rights, not to improve them, and there was ample evidence that the directors’ intention was to obtain an improper advantage by carrying out a purely formal or artificial transaction.

The wording of Reg 4(4) does not draw a distinction between variations that favour the employer and variations that are beneficial to the employee. Read literally, all changes to transferring employees’ contracts are void if made by reason of the transfer. However, Power v Regent Security Services Ltd (Brief 843), a case decided under the Transfer of Undertakings (Protection of Employment) Regulations 1981 SI 1981/1794, cast doubt on the notion that variations that benefit the employee are void. In that case, the Court of Appeal held that transferring employees could not be deprived of any rights that transferred with them, but that the transferee was bound by any new, more favourable terms it had agreed with the employees. An employee was therefore able to rely on an increase in his contractual retirement age, which was agreed with the transferee immediately prior to the transfer.

In the case reported above, four company directors agreed to vary their own employment contracts to their advantage shortly before the company’s sole client moved to a new service provider. The EAT had to determine whether the directors could rely on the varied terms in their claim against the transferee. The EAT also considered the test for determining whether an individual is assigned to an organised grouping of employees for the purposes of TUPE; reductions to the unfair dismissal compensatory award; and the remedy for failure to inform and consult employees about a TUPE transfer.

ECJ rules on ‘worker’ status in Yodel tribunal case.

B v Yodel Delivery Network Ltd, ECJ

The European Court of Justice gives a ruling by way of reasoned order on the question of whether a delivery driver was a ‘worker’ for the purpose of the EU Working Time Directive.

The Court refers to the existence of a wide contractual power of substitution, the driver’s ability to decide whether to accept work, his ability to work for others (including competitors), and his ability to fix his own hours of work, albeit within parameters set by the putative employer. Taking those factors into account, the Court indicates that the driver appeared to be working independently and that there did not appear to be a relationship of subordination, suggesting that he did not have ‘worker’ status. However, it will be for the referring employment tribunal to make the final determination.

The ECJ does, however, acknowledge the possibility that a worker’s apparent independence may be ‘merely notional’ or ‘fictitious’, and the Supreme Court’s decision in Autoclenz Ltd v Belcher and ors (Brief 934) would permit a court or tribunal to disregard a substitution clause that did not form part of the true terms of the agreement.

The Watford Employment Tribunal posed a number of additional questions to the ECJ, including whether an individual who has a right to engage substitutes can still be regarded as a worker during those periods when he or she is personally performing the service; whether it is material that the individual has never made use of the contractual right to provide a substitute or to perform similar services for third parties; and how working time should be calculated when a worker is afforded latitude as to his or her working hours and can work concurrently for third parties. Unfortunately, the ECJ does not directly address these issues. It does, however, make clear that the assessment of worker status is a fact-dependent exercise to be undertaken by the national court or tribunal.

Unfair Dismissal

The EAT held that in the Evans v London Borough of Brent case that an unfair dismissal claim should not have been struck out even though it had a reasonable chance of success but there would have been no compensation award made to the claimant if they had been successful.

The original tribunal struck out the claim as having no reasonable prospects of success save on the ground of procedural unfairness and because there was no prospect of the Claimant receiving any financial award, so it was not in the interests of justice for the case to proceed.

The EAT concluded that this failed to acknowledge the potential value of a mere finding of unfair dismissal as a judicial statement that the employer has violated the employee’s right.

This case highlights the need to get the procedure correct when dealing with all cases.  The employer would need to face the costs of defending the case at the tribunal.  The likelihood in this case would be a settlement where the employer would make a payment to the employee.

Health & Safety Updates.

Planning a Return to Work

Workplaces planning to return to work and those operating during the Coronavirus (COVID-19) pandemic need to ensure they are protecting their workforce. 

It is important that employees and employers work together to jointly identify effective controls to minimise the risk of transmission and make returning to work effective while looking after the health, safety and wellbeing of everyone in the organisation. 

Some control measures will be simple and easy to implement, others might pose more of a challenge and require substantial changes to the way some organisations operate.

Test and Protect Information for Employers

Test and Protect, Scotland’s approach to implementing the ‘test, trace, isolate, support‘ strategy is a public health measure designed to break chains of transmission of Coronavirus (COVID-19) in the community.  The NHS will test people who have symptoms, trace people who may have become infected by spending time in close contact with someone who tests positive, and then support those close contacts to self-isolate.  That means if they have the virus they are less likely to pass it on to others.  Employers need to play a vital role in keeping our communities safe by ensuring that their employees are aware of and able to follow the public health advice.

What to do

Employers should follow public health guidance if an employee becomes unwell with coronavirus symptoms at work. The person should leave work to self‑isolate straight away and, if possible, wear a face covering on route and avoid public transport. 

Direct your employees to www.nhsinform.scot or, if they can’t get online, call 0800 028 2816, to arrange to get tested.   Until they have been tested and told it is safe to leave home, employers should make sure that staff do not have to, or feel that they have to, come in to work.  Employees can request an isolation note through NHS Inform.

People who have tested positive for the virus will need to self-isolate for a minimum of 7 days.

Home Working – How to Work from Home Safely

Take regular breaks from DSE work

Incorrect use of DSE or poorly designed workstations or work environments can lead to problems in necks, shoulders, backs, arms, wrists and hands, as well as fatigue and eye strain. It could also lead to musculo-skeletal disorders (MSDs) such as carpal tunnel or tendonitis. 

  • Establish a routine for working at home;
  • Take regular short breaks from DSE work, especially while working on laptops;
  • Organise or schedule breaks into your day; 
  • Stretch and change position; and 
  • Look into the distance to change your focus from time to time and blink often

We can provide an e-learning training course on DSE, call us on 07375 097443 to discuss.

Travelling to and From Work/Travelling by Public Transport

From the 22nd June Face coverings are mandatory on public transport.  Therefore, if you need to use public transport to travel to your place of work as lockdown restrictions are eased you will be required to wear face covering to lower the risk of transmission of COVID-19

For some travelling by Public Transport will not be an issue for others this may be stressful, by following these points below will help to protect you and others:

  • Please don’t travel if you feel unwell, you may risk spreading the virus to others;
  • Try to maintain social distancing by sitting in quieter parts of the train or bus and keeping apart from other travellers as much as possible at stations and bus stops. If a bus, tram or train is too crowded, wait for the next one; 
  • Load up your travel card before travelling or use contactless card to pay for tickets;
  • If you can, try to travel off peak or outside the busiest travel times.  Perhaps your employer can be more flexible with start and finish times at the moment?
  • The virus can survive on surfaces and is transferred by contact between these and your hands.  Be aware whenever you are touching handrails, poles, seats and stair banisters for example and wash your hands or use hand sanitiser before you travel and as soon as possible after using public transport;  
  • Avoid contacting your face when travelling.  If you bite your nails, are used to brushing your hair from your eyes or are adjusting any face covering, this could be something you need to really think about;
  • Don’t eat or drink while travelling;
  • Follow advice on coughing and sneezing into a tissue while travelling and please put the tissues in a bin to avoid risk to cleaning staff and other travellers; and
  • Finally, be patient with travel staff and fellow passengers, as we’re all getting used to these changes together. 

Updates & Information Sources – COVID 19

Government advice on COVID-19

NHS advice on COVID-19

Advice for businesses 

Advice for Employers and Employees  Webinars from ACAS

Sector Specific Guidance

Small Business Advice

Clear your head

The Scottish Government’s approach to COVID-19 is guided by the Chief Medical Officer, who continues to monitor the situation closely by working with the World Health Organisation and the international community. They are calling on all employers to treat individuals with fairness and equity and to consider flexibility when managing the impact of COVID-19. 

Ask Us Anything About HR, Employment Law or Health & Safety