| HR & EMPLOYMENT LAW
Jackie Le Poidevin, Editor-in-Chief, HR Adviser |
Do You Still Need to Collect and Store Workforce Covid Data?
With Covid-19 measures relaxing across the UK, the Information Commissioner’s Office (ICO) is urging employers to review whether they still need to gather or retain extra personal information they’ve been collecting during the pandemic. For example, you may have been collecting information to establish whether employees need to isolate or need extra Covid safeguards in place. You may also have stored information on vaccination status. These are the key things the ICO is calling on organisations to consider so they can remain compliant with their data protection obligations.
Following the removal of pandemic restrictions, new ICO guidance says you should ask yourself these questions:
- How will still collecting extra personal information help keep our workplace safe?
- Do we still need the information we previously collected?
- Could we achieve our desired result without collecting personal information?
It adds that you should review your approach and ensure it is still reasonable, fair and proportionate to the current circumstances, taking the latest government guidance into account.
Should We Retain Information Collected During the Pandemic?
The ICO says you should assess any additional information which you collected and retained during the pandemic and securely dispose of any information that you no longer require. This will normally mean shredding paper records and deleting electronic records from your systems, including from backup storage systems.
Can We Keep Collecting Vaccination Information?
The ICO’s guidance explains that:
- You must have a compelling reason to ask people for their vaccination status.
- You must be clear about what you are trying to achieve and how gathering the information helps to achieve this.
- Your use of this data must be fair, relevant and necessary for a specific purpose.
- If you cannot specify a use for this information and are checking it on a ‘just in case’ basis, or if you can achieve your goal without collecting this data, you are unlikely to be able to justify collecting it.
- The use of this information must not result in any unfair treatment of employees.
- You should only use this information for purposes employees would reasonably expect.
You will also need to identify a lawful basis for collecting this information. If you previously relied on ‘legal obligation’ as your lawful basis and you still want to collect this information, you will need to identify another lawful basis if this legislation has expired. You’ll have to do this if you’re a care home and you want to check new recruits’ vaccination status now the regulations requiring staff to be double jabbed have been revoked.
As a person’s vaccination status is health data, which is ‘special category data’ under data protection law, it requires extra protection. Therefore, you must also identify an extra reason for processing this information, as set out in Article 9 of the UK GDPR.
You may be able to use ‘legitimate interest’ as your lawful basis. However, you shouldn’t assume this basis applies: you must carry out your own assessment and decide whether your need to gather information on vaccination status outweighs employees’ right to keep their personal information private.
You may be able to rely on one of these Article 9 reasons:
- Collecting vaccination information is necessary to carry out your employment law obligations, such as ensuring employees’ health and safety.
- Collecting the information is necessary for public health reasons.
Can We Tell Staff About Positive Cases in the Workforce?
The guidance says that data protection law doesn’t prevent you from keeping staff informed about potential or confirmed Covid-19 cases among colleagues. However, you should avoid naming individuals wherever possible and not provide more information than is necessary.
| HEALTH & SAFETY
Michael Ellerby, Editorial Board Member, Health & Safety Adviser and Risk Assessment & Compliance |
Why Your Health and Safety Policy is a Vital Tool in Your Armoury
Most organisations have some form of health and safety policy, but for some it is no more than a few lines, a signature and a date. Often, the potential value that the policy has to offer is lost! It could be so much more, and it could be used as an important tool to help you to focus on improvements in safety within your business.
The health and safety policy should have three parts: 1. Policy statement, 2. Organisation, and 3. Arrangements.
Statement
The Policy Statement is usually about one page of A4 text that underlies the company’s commitment to health and safety. This is the public facing section with which most people are familiar.
Organisation
If you want people to take responsibility for aspects of health and safety in your business, you need to communicate the message and ensure that they know. The organisation section of the document is really about identifying who is responsible and what they are responsible for. The organisation in the policy does not have to be the same as your management organogram.
Arrangements
In this section of the policy you give details of the practical arrangements you have in place, showing how you will achieve your health and safety policy aims. This could include sections that detail the things you need to do to run your business safely, such as:
- Risk assessment
- First aid provision
- Control of contractors
- Electrical safety
- Warehouse safety, etc.
The individual sections in the arrangements part of the policy document should detail the aspects that need to be managed and covered by those who are identified (in the Organisation section). For example, the Warehouse Manager is likely to be responsible for health and safety in the warehouse, and this could lead to responsibility for several important elements, such as:
- Restricting warehouse access to authorised persons.
- Providing suitable training to all warehouse workers.
- Ensuring that warehouse activities are risk assessed and that appropriate control measures are introduced, monitored, and maintained.
- Ensuring that the warehouse racking is maintained in a safe condition and that it is subject to regular checks as well as formal inspections.
- Ensuring that the warehouse staff are provided with suitable and sufficient PPE (including safety footwear, hi viz clothing, gloves, etc.)
Meanwhile, other staff may be responsible for other elements that influence health and safety in the warehouse. For example, the Operations Manager may be responsible for the Forklift Trucks (which are used in a few departments), including:
- Provision of suitable lift trucks for the operations undertaken.
- Arranging the service, maintenance, and repair of the lift trucks.
- Ensuring that the lift trucks are subject to LOLER inspections at appropriate intervals.
- Restricting the use of lift trucks to trained, authorised users (note: this would involve liaison with the Warehouse Manager as the lift trucks are likely to be used in this area).
- Organising refresher lift truck driver training, etc.
How the Policy Works
The health and safety policy helps to divide the important aspects of health and safety management between the various members of the team. These individuals know what they are responsible for and also who else is relying on them.
Helping to Avoid Things Falling Between Two Places
In the simple situation outlined above we have helped to identify who is responsible for what. If we did not do this, then it would be possible for a potentially dangerous situation to exist:
- The Warehouse Manager leaves servicing, maintenance, and inspection of the lift trucks to the Operations Manager, and
- The Operations Manager does not address this because they believe that the Warehouse Manager has it in hand.
The more complex your business, the more benefit can be obtained from a well thought out health and safety policy.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Are You Paying Employees at Least the National Minimum Wage?
The National Living Wage (NLW) and the National Minimum Wage (NMW) rates increased from 1 April 2022. As an employer, it’s important to check that you are paying workers at least the statutory minimum for their age. Workers aged 23 and older are entitled to the NLW, while workers under the age of 23 and who have reached school leaving age, are entitled to the NMW for their age. It should be remembered that all workers are entitled to the relevant statutory minimum wage, not just employees.
The New Rates
From 1 April 2022, the NLW, payable to workers aged 23 and above, is £9.50 per hour (increased from £8.91 per hour).
Workers under the age of 23 are entitled the NMW for their age. From 1 April 2022, this is set at £9.18 per hour for workers aged 21 and 22, £6.83 per hour for workers aged 18 to 20 and £4.81 per hour for workers aged under 18 who have reached school leaving age. Prior to 1 April 2022, the rates were, respectively, £8.36 per hour, £6.56 per hour and £4.62 per hour.
A separate apprentice rate is payable to apprentices who are under the age of 19, or 19 and over and in the first year of their apprenticeship. The rate is £4.81 per hour from 1 April 2022 (£4.30 previously).
Where the worker is provided with living accommodation, the amount paid can be reduced by the accommodation offset. This is £8.70 a day (£60.90 per week) from 1 April 2022; the previous rate was £8.36 per day (£58.52 per week).
Effective Start Date
Although the rates apply from 1 April 2022, where a pay period spans 1 April 2022, you do not need to apply the new rates until the start of the first pay reference period after 1 April 2022.
Example 1: Alan is paid monthly on the last day of the month. He is 47. He must be paid at least the new NLW of £9.50 per hour from 1 April 2022. The first pay reference period starting on or after 1 April 2022 is the period from 1 April 2022 to 30 April 2022.
Example 2: Bella is paid on the 15th of each month. She is 21. On 15 April 2022, she is paid for the period from 16 March 2022 to 15 April 2022. As the pay reference period starts before 1 April 2022, she must be paid at least the NMW for workers aged 21 and 22 of £8.36 per hour. Her employer does not need to pay her the new NMW for her age of £9.18 per hour for the period from 1 April 2022 to 15 April 2022.
Her next pay day is 15 May 2022 for the pay reference period from 16 April 2022 to 15 May 2022. This is the first pay reference period to start after 1 April 2022. Her employer must pay her at least the new NMW rate for her age of £9.18 per hour for all of this period.
As the rates do not take effect until the start of the first pay reference period on or after 1 April 2022, a worker’s pay may not necessarily go up from 1 April 2022.
Those Workers Not Paid Hourly
The NLW and NMW rates are specified in the form of an hourly rate. All workers must be paid at least the relevant statutory minimum, even if they are not hourly paid. Check that you are paying the minimum amount for workers who are paid an annual salary, or who are paid on a piece or task rate basis. You can use the calculator on the Gov.uk website (see: https://www.gov.uk/am-i-getting-minimum-wage) to check.
Remember, if you do not pay workers at least the minimum amount that they are entitled to by law, you will have to pay any arrears due, and may also be charged a penalty.