The General Data Protection Regulation (GDPR) will come into force on 25th May 2018 changing the way we process data forever. The aim of the GDPR is to put greater protection on the way personal data is being processed for all EU citizens. Personal data can be anything from a name, an email address, NI number, bank details etc so as you can imagine employers process a huge amount of personal data on a daily basis. So how will the GDPR affect employers in terms of processing employee data?
Data in the employment context, will include information obtained from an employee during the recruitment process (regardless of whether or not they eventually got the job), it will also include the information you hold on current employees and previous employees. All this information may be saved in hard copy personnel files, held on HR systems or it could be information contained in emails or information obtained through employee monitoring.
Under GDPR your employee’s will have increased rights around their data. These rights will include:
Under the GDPR legislation, where possible employers should be able to provide self-service remote access to a secure system which would allow employees view and manage their personal data online 24/7. Furthermore, the cloud functionality will improve your payroll processing with simple email distribution, safe document upload, easy leave management and improved communication with your employees. By introducing a self-service option, you will be taking steps to be GDPR ready.
Book a demo today to find out how you can benefit from BrightPay Connect.
Those of you who were on any of our recent GDPR webinars will be aware that data controllers (e.g. a payroll bureau client) need to be amending their contracts with any data processors (e.g. the payroll bureau) to accommodate the new requirements under the GDPR.
For those of you who did not get to attend our webinars here is a brief overview.
Whenever a data controller uses a data processor there needs to be a written contract in place. The contract is important so that both parties understand their responsibilities and liabilities. The GDPR sets out certain information which needs to be included in the contract.
Controllers are liable for their compliance with the GDPR and must only appoint processors who can provide ‘sufficient guarantees’ that the requirements of the GDPR will be met and the rights of data subjects (an individual who is the subject of personal data) protected.
Processors must only act on the documented instructions of a controller. They will however have some direct responsibilities under the GDPR and may be subject to fines or other sanctions if they don’t comply.
What does this contract look like?
To comply with the new requirements under GDPR you could either:
Our Advice to Payroll Bureaus
Our advice to payroll bureaus is that when it comes to GDPR you should aim to take an active role in educating your clients about GDPR.
Although the onus is on data controllers to ensure contracts are in place, payroll bureaus looking to get ahead of the GDPR would be well advised to approach their clients and instigate putting the appropriate contracts in place.
Template Data Protection Agreement (DPA)
To assist our customers we have created a template Data Protection Agreement which can be used as an addendum to any existing agreements.
Data protection and how personal data is managed is changing forever. On 25 May 2018 the new General Data Protection Regulation (GDPR) will come into force. The GDPR is a European privacy regulation replacing all existing data protection regulations.
Current data protection legislation in the UK dates back to 1998, predating current levels of internet usage and cloud technology, making it unsuitable for today’s digital economy.
The GDPR will apply to any personal data of EU citizens, regardless of whether it is stored within or outside the EU. Most, if not all companies, process a level of personal data, whether it is customer details or employee details, therefore businesses need to be aware and plan for the new legislation.
What is Personal Data?
The GDPR substantially expands the definition of personal data. Under GDPR, personal data is any information related to a person, for example a name, a photo, an email address, bank details, their personnel file, or a computer IP address.
Ignoring the new legislation is ill advised as there are tough new fines for non-compliance. Companies or organisations found to be in breach of the legislation will face fines of up to 4% of annual global revenue or 20 million Euros, whichever is greater.
GDPR & Brexit
The UK will not have departed the EU on 25 May 2018 and will still be an EU member state. The GDPR will consequently become domestic law and compliance will be mandatory.
Some of the key changes included as part of the GDPR include:
Consent must be clear, distinguishable from other matters and provided in an easily accessible form, using clear and plain language. It must be as easy to withdraw consent as it is to give it.
Breach Notifications; where a breach occurs, the Information Commissioner’s Office and affected data subjects must be notified within 72 hours of the breach coming to light.
Data subjects will have additional rights, including:
If you haven’t already started planning for GDPR click here for guidance on how to prepare.
A range of employment changes are set to come into effect in 2015. Employers need to familiarise themselves with these changes to ensure they are processing payroll correctly.
Some of the most significant changes to be aware of include:
1. Family Friendly Changes
a. Shared Parental Leave & Pay
This is brand new legislation which will apply to parents with babies due to be born/placed for adoption on or after 5th April 2015. Eligible parents will have the flexibility to share statutory leave and statutory pay in the child’s first year. Under the legislation, leave and pay may be taken in discontinuous blocks, and also both parents may take leave and be in receipt of statutory pay at the same time. Whilst using payroll software will ease the burden of processing shared parental leave and pay, there is a rigorous application process that must be completed by employees. To be sure you are ready, employers are well advised to familiarise themselves with the regulations early. Further details are available here.
b. Changes to Statutory Adoption Leave & Pay
From 5 April 2015 there will be no service requirement in order for employees to be eligible to take adoptive leave. Additionally, from 5 April 2015 the Statutory Adoption Pay rates will increase; the first 6 weeks will be paid at 90% of average weekly earnings. After that SAP will be paid at the lower of either the weekly standard rate or 90% of average weekly earnings. This will mirror the Statutory Maternity Pay rates.
Finally, primary adopters will now be entitled to paid time off to attend up to five adoption appointments.
c. Rise of child’s age limit for parental leave
The current right to take 18 weeks’ unpaid parental leave before a child’s 5th birthday is to be extended from 5 April 2015, so that leave can be taken up to the child’s 18th birthday.
2. Automatic Enrolment
Auto Enrolment will continue to be rolled out to all employers. Every UK employer has a date on which workplace pensions automatic enrolment applies to them, i.e. a staging date. For most employers that had between 30 and 58 staff on 1st April 2012 their staging date will be during 2015. However staging dates can vary, so employers are well advised to check out their staging date on the Pensions Regulator site http://www.thepensionsregulator.gov.uk/employers/tools/staging-date.aspx
3. New Fit for Work Service
Due to be rolled out during the year, the Fit for Work Service will offer employers access to free occupational assistance for employees who have been off sick for four weeks or more. Employers will also be able to claim up to £500 tax relief on payments for medical treatment for their employees where the treatment has been recommended under the new scheme.
4. Statutory Pay Rates
The usual shifts in statutory rates of pay are scheduled for 2015. Rates for statutory maternity, paternity, and adoption pay will increase from 5 April 2015, as too will statutory sick pay rates. Any changes to the national minimum wage rates will be effective from 1 October 2015.
5. NIC and Under 21s
The abolition of employer NICs for Under 21s comes in to effect from 6th April 2015. Employers will not be required to pay Class 1 secondary NICs on earnings up to £815 per week, for employees who are under the age of 21. Class 1 secondary NICs will continue to be payable on all earnings in excess of £815 per week. This could result in savings to an employer of up to £90 per week for hiring an employee who is under 21!
The UK "living wage" - an hourly rate based on the amount needed to cover the basic costs of living - has been raised by 20p to £7.85, whilst The London Living Wage has been raised from 8.80 an hour to £9.15.
What is the difference between the Living wage and the national minimum wage?
The living wage is an informal benchmark, not a legally enforceable minimum level of pay line the national minimum wage. The national minimum wage is set by the business secretary each year on the advice of the Low Pay Commission. Unlike the living wage, the national minimum wage is enforced by HM Revenue and Customs (HMRC).
The basic idea of the living wage is that these are minimum pay rates needed to let workers lead a decent life.
Does this effect employers?
The living wage is a voluntary wage so employers are not legally obliged to pay it. Nevertheless, it has been adopted by more than 1,000 employers across the country benefitting 25,000 workers. Citizens UK, the community behind the living wage project say that the number of companies paying the rate has doubled in the last year. However, some business groups are not happy with the increase saying some employers might struggle to pay it.
The advice to employers should be to seriously consider the living wage, but only implement it if it is affordable.
As we enter the summer holiday season employers need to ensure that they are paying their employees correctly during annual leave.
A recent decision by the European Court of Justice (ECJ) will impact how some annual leave pay is calculated.
Do you pay employee’s commission? Is the commission calculated based on the amount of sales made or actual work carried out? If yes, according to the ECJ, holiday pay should include commission pay.
The decision was made in the case of Locke v British Gas Trading and Others. Locke was a Sales Representative whose commission made up approximately 60% of his remuneration. After taking two weeks leave in 2011, Locke suffered financially as he was unable to generate sales for the period he was on annual leave.
The ECJ ruled that the purpose of annual leave is to allow a worker to enjoy a period of rest and relaxation with sufficient pay. By not including commission payments with holiday pay, employees are less likely to take annual leave so as to avoid financial hardship.
It has been left to the national courts to determine how to calculate the commission to which a worker is entitled, however the court did suggest that taking an average amount of commission earned over a certain period, e.g. the previous 12 months.
Employers are advised to review their commission policies to establish which, if any, payments need to be included in annual leave pay.
The new tax year sees a number of changes in the area of employment law. These include:
From 6th April claimants should send their dispute details to ACAS first before going to a tribunal. From 6th May this step will be compulsory. ACAS will endeavour to conciliate a settlement, although both parties may opt not to participate in the process, in which case an Early Conciliation Certificate will be issued and the claim can proceed to tribunal.
Employing Illegal Immigrants
The maximum fine which can be issued to employers found employing individuals who do not have the right to work in the UK has been increased from €10,000 to €12,000.
Financial Penalties on Employers
Tribunals will now have new rights to issue penalties to employers in breach of employment rights maliciously or recklessly. Penalties will be in addition to any compensation due to the employee, they will be payable directly to the Secretary of State and may vary between £100 and £5000.
Removal of Statutory Discrimination Questionnaire
The questionnaire by which an individual can obtain information about potential discrimination from an alleged discriminator is removed.
Statutory Rates and Compensation Increase
From 6th April statutory sick pay (SSP) increased from £86.70 to £87.55. The Percentage Threshold Scheme which allows employers with relatively high levels of sickness absence to recover a percentage of statutory sick pay is also ending.
Statutory maternity pay (SMP), statutory paternity pay (SPP), and statutory adoption pay (SAP) have all increased from £136.78 to £138.18 since 6th April.
For the purpose of calculating statutory redundancy and basic award for compensation, a “weeks” pay has been increase from £450 to £464. The maximum compensatory award from unfair dismissal rose from £74,200 to £76,574.
From 6 April 2014, employers will no longer be able to recover payments made for Statutory Sick Pay (SSP). HMRC has made the decision to abolish the Percentage Threshold Scheme (PTS), which is the scheme in place to provide SSP compensation for employers.
Currently an employer is entitled to recover some of the SSP paid to their employees if the total SSP paid in a tax month is greater than a set percentage of their gross Class 1 NICs (employers’ and employees’) liability for that month
Although PTS is being abolished from April 2014, employers will still be able to make claims for reimbursement of SSP under PTS (paid for sickness periods up to 5 April 14) until the end of the 2015/16 tax year.
In addition, the associated SSP record-keeping requirements will also be abolished at the end of 2013/2014. However, employers will still be required to maintain records for PAYE purposes and to demonstrate they are meeting their SSP obligations.
The decision to abolish PTS was made as a result of an independent review which found that the current scheme does not support the proper management of sickness absence in the workplace.
The Government has therefore decided to reinvest the money in a new Health and Work Service (HWS), due to be introduced by the end of 2014. The aim of this service will be to:
Employers, who want to avoid being faced with increasing costs, need to look carefully at how they manage sickness absence in their workforce. The first point of action will be to implement, or review, the company sickness policy.