Under UK employment law, an employer needs a fair reason in order to dismiss an employee. It is unclear what reason P&O is likely to rely upon to justify the sackings. The company reportedly said the sackings were necessary “to reduce our crewing costs by 50 per cent, secure the future of our business and set it up for growth”.

One reason P&O Ferries might rely on is redundancy. This reason is appropriate where dismissal is due to a need to reduce headcount. However, P&O Ferries could struggle to prove that this was a genuine redundancy situation. It does not appear that staff numbers are being reduced; the main motivation appears to be reduction of staffing costs.

Alternatively, P&O Ferries could rely on the catch-all category of “some other substantial reason” (SOSR). This reason is typically used by employers where the reason for dismissal does not align neatly with one of the other legally accepted reasons for dismissal.

Whatever reason is chosen an employer must follow a fair procedure when dismissing staff. The appropriate procedure to follow depends on the reason for dismissal. With either redundancy or SOSR, a fair process involves consulting with employees prior to their dismissal. Given the swift manner in which the dismissals took place, no form of consultation seems to have occurred.

Without a fair reason or a fair procedure being followed prior to dismissal, P&O Ferries may find itself facing claims of unfair dismissal in the employment tribunal. However, those are not the only claims it could potentially face.

Where 100 employees or more are facing dismissal, an employer is legally required to take certain steps under collective consultation legislation. These include consulting collectively with employees at least 45 days before the date of the first dismissal. The penalty for not engaging in collective consultation is a protective award for each employee of up to 90 days’ gross pay. This is one of the most expensive liabilities an employer may face in employment law.

Another requirement is the need to notify the Secretary of State of the Department for Business, Energy and Industrial Strategy (BEIS) of the planned dismissals. The notification must be sent to BEIS at least 45 days before the first dismissal. Failure to do so is a criminal offence punishable by a fine. According to reports, the Government only learnt of the planned dismissals the night before the P&O Ferries announcement. The company’s directors could face criminal proceedings for failing to comply with the collective consultation obligations.

According to reports, P&O Ferries has offered its employees severance packages containing enhanced redundancy payments. These are likely being offered as a means of staving off claims for unfair dismissal and failure to carry out collective consultation. However, the company cannot dispel the potential criminal charges the company [...]]]> http://lawandlabour.com/po-ferries-sackings-are-they-unlawful/feed/ 0 http://lawandlabour.com/5-ways-to-prepare-for-the-gdpr/ http://lawandlabour.com/5-ways-to-prepare-for-the-gdpr/#comments Sun, 11 Mar 2018 12:20:15 +0000 http://lawandlabour.com/?p=2577 One of the biggest sea changes to data protection law in 20 years will take effect on 25 May 2018 when the General Data Protection Regulations, or GDPR, begins to apply. This new European legislation will have a wide-ranging impact on the way in which businesses handle data of customers and clients. The GDPR will have particular significance for employers who will have to think carefully about how they handle all data relating to their employees. This article provides five key steps employers can take now to prepare for the introduction of the GDPR.

As a starting point, you should determine what personal data you hold on employees, where it came from and who you share it with. ‘Personal data’ covers an employee’s name, address, date of birth, salary and any other data from which the employee can be identified.

The GDPR introduces more stringent rules standard around consent which require consent to be freely given, specific, informed and unambiguous. In practice this means that consent must be capable of being verified, given by a positive opt-in, separate from other terms and conditions, capable of being easily withdrawn, and cannot be inferred from silence, pre-ticked boxes or inactivity.

Most employers currently use wide-ranging consents which are often buried away in employment contracts. Unfortunately this type of consent will no longer be sufficient. You will need to either obtain new, GDPR-compliant consent or consider alternatives to consent.

Most employers typically rely on consent as their go-to reason for processing an employee’s data. However, there are other lawful reasons that can be equally appropriate and more convenient to rely on.

Such alternative reasons include a requirement to perform an obligation under the employment contract, e.g. to pay the employee’s salary. Another pertinent reason is to comply with a legal obligation, such as submitting tax returns to HMRC. A useful reason for processing personal data is to comply with the employer’s legitimate interests. This catch-all categories can cover a wide range of activities.

In advance of the GDPR taking effect, you should review the various types of processing activities you carry out and identify the appropriate legal reason under the GDPR for carrying out each type of activity.

Under the GDPR, when you collect an employee’s personal data you will now need to give them certain information on how you intend to use their data. This is in keeping with the ‘transparency principle’ which is a key component of the GDPR. Privacy notices must be provided free of charge in a form that is concise, intelligible, easily accessible, and written in clear language.

With the GDPR comes a new obligation to report to the Information Commissioner’s Office within 72 hours any breach that could result in a risk to an individual’s rights and freedoms. Examples are breaches that could result in discrimination, damage to reputation, loss of confidentiality, financial loss, or any other significant economic or social [...]]]> http://lawandlabour.com/5-ways-to-prepare-for-the-gdpr/feed/ 0 http://lawandlabour.com/five-tips-for-handling-fighting-in-the-workplace/ http://lawandlabour.com/five-tips-for-handling-fighting-in-the-workplace/#comments Sun, 23 Oct 2016 18:02:14 +0000 http://lawandlabour.com/?p=2369 Workplace disagreements are commonplace, but it is thankfully rare for them to escalate into the type of conduct best suited to a boxing ring. However, should the worst happen and two employees end up trading blows, there are five tips that employers should bear in mind.

As tempting as it might be to sack the offending employees and get the matter over with quickly, you should avoid making rash decisions based on assumptions which cannot be backed up by convincing evidence.

The best course of action is to carry out a full investigation before deciding on the appropriate penalty. Meet with each party and get their version of events. If one person has been accused of being the aggressor, they should still have the chance to answer the case against them and put forward any mitigation.

On some occasions the fight may be sufficiently serious to result in police involvement. However, there is no need for the employer to wait for the outcome of criminal proceedings before taking action, as long as it has carried out its own investigation that is fair and reasonable in all the circumstances.

The offending employees are likely to give differing accounts of what took place. Witness evidence will therefore be key to deciding on guilt.

One complication is that an employee who is under police investigation might not wish to speak about the fight if to do so could lead them to incriminate themselves in the criminal proceedings. This may hinder your ability to get useful evidence from that person.

It is not uncommon for one party to end up the loser in a workplace battle. Does that naturally make them the innocent party who should therefore get a lighter penalty? Not necessarily. You should therefore avoid treating one party more favourably than the other unless the evidence strongly indicates that the offenders’ conduct was not sufficiently similar.

You should consider whether the evidence is sufficient to determine who was responsible for the fight. If not, then both offenders should receive similar disciplinary sanctions.

Employers should be alert to the potential risk of harm to the company’s reputation caused by the altercation, both within the business and externally. The worst case scenario is that news of the fight reaches the press causing negative publicity that has an adverse impact on the company’s business.

Even if news of the fight does not leave the business, it may still have a detrimental effect on workplace relations. It is therefore useful following an altercation to send a circular to staff with a warning that any fighting, whether on work premises or at work-related social activities away from the office, will result in severe disciplinary penalties, including dismissal. Such warnings will hopefully make any employee think twice before he invites a colleague to step outside and handle a dispute “mano a mano”.

One interesting question is why Byron had illegal staff working for it in the first place. The most likely answer is that its pre-employment checks were not as robust as they should have been.

Presumably when the Home Office asked Byron to prove that all its staff were legitimately entitled to work in the UK, Byron could not provide satisfactory evidence. Some reports say that up to 30 Byron staff were eventually detained, which means Byron could have been facing total fines in the region of half a million pounds.

Such a substantial penalty would be a strong incentive for many employers to work with the Home Office in the hope of receiving a lighter fine. However, against this must now be weighed the risk of negative publicity, consumer boycotts, and low staff morale from being perceived to have tricked staff into being deported, which has left a sour taste in the mouths of many.

Much of the legislation relating to employment rights has its foundation in European law. In addition, UK courts have to abide by the decisions of the European Court of Justice when interpreting any employment law that has its basis in EU law.

In the table below, we summarise which areas of law are likely to change.

Despite the concerns noted above, any changes are unlikely to take place immediately following Brexit. The rules governing EU membership mean it will take two years for the UK to leave the EU. The Government would therefore be more likely to retain current legislation for a period of time before making changes to individual legislation on a piecemeal basis as and when necessary.

“European Union flag” by Flikr user Yanni Koutsomitis used under Creative Commons Attribution 2.0 license