Data Protection

The Supreme Court has ruled that employment tribunal fees are unlawful

The government suffered a heavy defeat on 26th July after the Supreme Court ruled that employment tribunal fees are unlawful and the government will now have to repay up to £32m to claimants, relating to claims dating back to April 2013.

Brought forward by the Unison union Lord Reed, the judgment said that the fees were unlawful because of their effects on access to justice. Introduced in 2013 and costing between £390 and £1200, the fees have been said to prevent access to justice for workers unable to fund their case.

“The making of the Fees Order was not a lawful exercise of those powers, because the prescribed fees interfere unjustifiably with the right of access to justice under both the common law and EU law, frustrate the operation of Parliamentary legislation granting employment rights, and discriminate unlawfully against women and other protected groups.”

While the fees were brought in by the government to reduce the number of malicious and weak cases, after 3 years there had been a 79% reduction in cases brought forward.

Discrimination cases cost more for claimants because of the complexity and time hearings took. The Supreme Court found this was indirectly discriminatory because a higher proportion of women would bring discrimination cases.

Unison general secretary Dave Prentis has said: “This is absolutely a tremendous victory, it’s probably the biggest victory of employment rights in this country.”

So what now?

In order to deal with this massive backlog of repayment and claims the Presidents of the Employment Tribunals have issued Case Management Orders.

The Order states that all cases and applications arising from the Unison case, or applications for reimbursement of fees, shall be made in accordance with administrative arrangements to be announced by the Ministry of Justice and HMCTS shortly… We wait to see what happens next!

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Personal data: How to comply with legal requirements

Data protection for any company, no matter how large or small, is an important and complex issue. Data issues can come up at work in many circumstances, from recruitment and employer references to record-keeping and performance monitoring. It’s important you take the necessary steps to store, handle and process this data responsibly.

What are the legal requirements?

The main UK legislation governing data protection is the Data Protection Act 1998 (DPA) which came into force on 1 March 2000.

To keep things simple; within the act ‘personal data’ includes: Personnel records, including sickness absence, performance appraisals and recruitment notes etc. It also gives extra protection to certain types of personal data called sensitive personal data which includes information about the subject’s race, ethnicity, politics, religion, trade union status, health, sex life or criminal record. Such data should be treated with particular care. Financial data, although not technically defined as ‘sensitive personal data’ under the DPA should be treated in the same way.

The act says if you keep or store personal data it should be:

  • fairly and lawfully processed
  • processed for limited purposes
  • adequate, relevant and not excessive
  • accurate
  • not kept for longer than is necessary
  • processed in line with an individual’s rights
  • secure
  • not transferred to countries outside the European Economic Area (EEA) without adequate protection.

It’s against the law if a business doesn’t follow these principles, and substantial penalties can be imposed. The Information Commissioner can issue undertakings, enforcement notices, and for serious breaches, civil monetary penalties of up to £500,000 for a breach of one or more of the principles.

So what are some practical ways that you can keep, store and use personal data for the purposes of your business?

Tips for how to store and use data responsibly:

  • Consider appointing a data protection officer to be in charge of all aspects of information including the DPA, in a smaller organisation this could be a manager or the business owner.
  • Consider why information is collected and how it is used. Issue your managers with guidelines for how to gather, store and retrieve data.
  • Ensure that all information collected now complies with the Data Protection Act 1998.
  • Check the security of information stored. If it is printed material this could simply be stored securely in a locked filing cabinet which only certain managers have access to. Digital documents on your computer systems should be saved in separate secure folders that are password protected.
  • Review policy and practice in respect of references, both providing a reference and receiving them in respect of new employees.
  • Review or introduce a policy for the private use of telephones, email and post. A company should create a communications policy for employees where company mobiles and laptops are provided.

For professional advice on this or any other HR and Employment Law matters, please contact Alison here.

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