Employment News: data protection, Brexit, furlough | Hogan Lovells

Tell me more – ICO publishes detailed subject access guidance

The ICO has published detailed guidance on handling subject access requests (SARs). Although the guidance relates to all SARs, some aspects are particularly relevant for employers responding to SARs made by employees.

  • The guidance stresses the importance of all staff being able to recognise a SAR, given the variety of different ways in which SARs can be made. Employers should make sure staff are properly trained in this respect.
  • If a SAR is complex, the time for responding to it can be extended from one month to three months. An employer will often want to argue that employee SARs are complex and that the longer time-frame applies. The guidance identifies factors that indicate that a SAR is complex, such as technical difficulties in retrieving archived information, or the need to obtain specialist legal advice. However, a request will not be complex simply because a large volume of information has been requested.
  • Employers can ask an individual to clarify a SAR that relates to a large volume of information, such as “all the information you hold about me”, by asking the employee to confirm which information or processing their request relates to. The guidance confirms that asking for clarification will “stop the clock” for responding to the request until the data subject responds. However, employers should not ask for clarification automatically. It is only appropriate to ask for clarification where this is genuinely required in order to respond to a SAR and the employer processes a large amount of information about the individual.
  • If a request is manifestly excessive or unfounded, an employer can choose not to respond to it, or can charge a reasonable fee for doing so. It can also charge a reasonable fee if an individual asks for a further copy of data following a SAR. The guidance provides more detail about the costs that a controller can take into account when deciding what a reasonable fee is. These include photocopying, printing and postage costs, the costs of any equipment (such as USB devices) and estimated staff costs for responding to the request charged at a reasonable hourly rate. It is good practice to decide in advance when a fee will be charged and how it will be calculated. If an individual complains to the ICO, the employer will have to justify the fee charged.

Not so divergent – departing from EU caselaw

Under the European Union (Withdrawal Agreement) Act 2018 (the 2018 Act), UK courts must continue to have regard to CJEU decisions reached before the end of the transitional period once that period ends. This applies when courts are considering EU law that has been converted into domestic law as a result of Brexit and the law has not been subsequently modified. Under the 2018 Act the Supreme Court would have had power to depart from existing EU case law where it was appropriate to do so.

The European Union (Withdrawal Agreement) Act 2020 modified the 2018 Act to give the government the power to allow other courts to depart from retained EU case law. Earlier in the year the government consulted on how to exercise the power. One of the options was to allow lower courts, potentially including the EAT, to depart from retained EU case law “where appropriate”.

The government has now decided that the power to depart from EU case law should be restricted to the Court of Appeal and equivalent courts in Scotland and Northern Ireland. According to the consultation response, this will reduce the potential operational impact on the Supreme Court of being the only court with power to depart from EU case law, while minimising legal uncertainty and minimising the risk of divergent decisions from courts across the UK.

As tribunals and the EAT will continue to be bound by existing CJEU decisions, areas of employment law influenced by EU case law – the calculation of holiday pay being an obvious recent example – are unlikely to change in the short to medium term. Legislative change is of course a possibility, particularly in relation to laws that are perceived as imposing undue “red tape” on employers, but the government has not yet announced which pieces of legislation, if any, it views as ripe for reform.

Furlough redux

With the reintroduction of lockdown in England, the government has decided to extend the Coronavirus Job Retention Scheme (CJRS) for another month and suspend the introduction of the Job Support Scheme (JSS) that was due to replace it on 1 November.

During November, the terms of the CJRS will reflect those that applied in August. This means that:

  • The government will cover 80% of furloughed employees’ wages, up to a cap of £2,500 per month; but
  • Employers will have to pay employer NICs and auto-enrolment pension contributions.
The November CJRS is available to all employers with a UK bank account and PAYE scheme, regardless of whether they have accessed the CJRS previously.

Employers can claim for any employees included in a Real Time Information submission to HMRC on or before 30 October 2020. Employees do not have to have been furloughed before and can be furloughed on a full time or flexible basis, provided that any period of furlough lasts at least seven consecutive calendar days. Employers will be responsible for paying employees for the hours they work and for the NICs and pension contributions on those amounts. They can choose to top-up employees’ furlough pay above the 80% level at their own cost if they wish.

According to the government announcement, the Job Support Scheme will be introduced when the job retention scheme ends.

 

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