Employment and Immigration Law Legal Update 09/06/08

In this edition of our e-newsletter we focus on the issues surrounding employee surveillance, Uk Charity Heyday's challenge to part of the Employment Equality (Age) Regulations 2006 and recently published guidance by the Information Commissioner’s Office (ICO) setting out an employer’s obligations under the Data Protection Act 1998 (DPA) in relation to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

EMPLOYEE SURVEILLANCE

‘Buddy Punching’; A worker clocking in or out for a fellow worker when they arrive at work late or leave early.

Many businesses are faced with the consequences of buddy punching but are often unable to prove it. The direct effect of the system is the cost of having to pay workers for time that is not spent working (and not therefore earning money for the business). For large businesses, this cost will not be insignificant.

Now Budgens are trialling a scheme to combat the consequences of buddy punching. Six franchised stores of the well known supermarket chain are using fingerprint technology to ensure that its workers are not falsifying timesheets.

The system requires workers to clock in and out by using their fingerprints which are then converted into binary numbers. The fingerprints are erased immediately in order to comply with data protection legislation. Two of the stores with a combined workforce of 25 confirm they have saved £10,000 over twelve months as a result of the trial.

This is not the only technology to be considered to improve businesses. Lie detectors, currently being trialled by local authorities to target benefit fraud, could be the next step in preventing workers from faking sickness absence. As we advised in our last Employment ENews, the National Staff Dismissal Register is another method of detecting dishonesty amongst your workforce.

Businesses have been warned by Trade Unions that the best relationship with your workforce is built on trust and that this could be diminished by excessive surveillance.

CHARITY’S HEYDAY IS BROUGHT FORWARD

Charity Heyday, part of Age Concern, is currently challenging parts of the Employment Equality (Age) Regulations 2006 that allow employers to mandatorily retire and refuse to employ, people over the age of 65. The case has been referred by the High Court to the European Court of Justice to provide an interpretation of the EU’s Equal Treatment in Employment Directive, which Heyday is alleging has been breached by the UK Government imposing a mandatory retirement age. The High Court will then consider whether the Directive has been properly implemented into UK law. The case was expected to be considered by the ECJ in 2009 but has been listed much earlier, on 2 July 2008.

Heyday states that there is very little protection for employees over the age of 65 who are not given the choice to be able to work beyond this age. Providing they follow the correct procedure, employers are currently able to dismiss employees at or over the age of 65 for no other reason than for their age. Many employees who have brought claims in the Employment Tribunal after being forced to retire for this reason or who have been refused a job because of their age have had their claims stayed pending the decision of the ECJ. The awaited decision could see many more employees putting their claims on record.

If Heyday’s challenge is successful, the position with regard to age discrimination will be thrown into uncertainty. If the UK law is changed as a result, many employers could see themselves having to pay out compensation.

Heyday is also challenging the wide scope that is given to employers in justifying age discrimination in the work place.

We will keep you updated on the progress of the case.

NEW GUIDANCE FROM THE INFORMATION COMMISSIONER

The Information Commissioner’s Office (ICO) has recently published new guidance setting out an employer’s obligations under the Data Protection Act 1998 (DPA) in relation to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

The DPA places stringent obligations on all organisations holding personal data relating to individuals, including obligations of non-disclosure of that information. TUPE came into force in April 2006 and, as part of the transfer of one business to another, required that information relating to any transferring employees should be passed to their new employer. At the time that TUPE came into force, the ICO did not amend its guidance on the DPA as the Act provides for certain derogations from the non-disclosure duties, one being if a disclosure is required by law.

However, both businesses involved in the transfer process must still comply with the requirements of the DPA and the ICO now provides guidance on how to do this. Any information provided must be accurate, up-to-date and secure and it is suggested that any employees affected by the disclosure should be notified that it will take place. Information should be provided at least two weeks before the transfer is completed and disclosable information could include details of pay, working hours, entitlement to holiday and any details surrounding disciplinary or grievance action in relation to any of the employees. Only relevant information should be disclosed. The information should be limited to being used in relation to the transfer and should be kept only for as long as necessary.

The new guidance can be found on the ICO’s website, www.ico.gov.uk.

This article copyright © 2008 Steeles Law llp. All rights reserved.