Nearly 5 months since the General data Protection Regulation (GDPR) was introduced across all of the European Union, complaints around Data Protection have nearly doubled in the UK according to the Information Commissioner’s Office (ICO)
GDPR was designed to give Data Subjects more control over their personal data, with more transparency and the threat of larger fines to those in breach of the new rules. The GDPR requires any company that suffers a data breach to notify its users/data subjects within 72 hours of the breach being discovered.
• Data protection complaints to the UK’s ICO rose to 4214 in July compared to just 2310 complaints received in May before the GDPR came into force. A spokes person for the ICO said the increase was expected, as more users became aware of data protection because of publicity around the new rules and following a series of high-profile data scandals involving some well-known household names, like Morrison’s and Dixons Carphone.
• In July the ICO reported that since May 25th, it had seen a four-fold increase in the number of breaches that organizations were self-reporting.
Experts note, however that the increase’s do not mean that the number of data breaches has suddenly gone up, but rather reflects the full scale of the data breach problem becoming better known.
Organisations that fail to comply with GDPR can face fines of up to 4% of annual global revenue or €20 million, whichever is greater. So far none of the EU’s Data Protection Agency’s have levied any fines. Multiple DPA’s told the International Association of Privacy Professionals Advisor Newsletter that it is simply too soon.
We will be hosting a free online webinar on ‘GDPR 5 Months On’ on Tuesday October 16th at 11am, where we will look at the implications of GDPR on payroll processing and how employer’s can be demonstrate compliance by following a few, simple steps.
To register for this webinar please click here.
Is the emailing of payslips permissible under GDPR?
There is nothing in the GDPR that states it is no longer permissible to email payslips, this practice is still very much acceptable. The thing to keep in mind in relation to emailing payslips is to ensure that all appropriate security measures are in place. The payslips that are emailed from BrightPay are encrypted and deleted from our servers once sent, however it may also be prudent of a processor of the payroll to password protect the payslips also. It will be the responsibility of the Data controllers (employers) to be vigilant that correct email addresses are inputted.
Can I still use my hard-earned mailing lists after May 25th?
Not automatically - the GDPR states that to be able to ‘Lawfully Process’ personal data you must be able to fall into at least 1 of the 6 processing classifications, the first one being Consent. Consent must be:
• Specific, informed, unambiguous, and freely given – there must be evidence that clear affirmative action has been given.
• Must be for a specified purpose
• Where consent is obtained as part of a larger document covering other things, consent text must be clearly distinguished from everything else
• Evidence needs to be retained as to how the consent was obtained. For example; forms, brochures signage, website screenshots.
• Language must be accessible and easily understood.
• Have a clear and seamless opt-Out process in place.
If you have mailing lists that you’ve used pre GDPR you will not be able to continue using them if you haven’t got specific approval or consent from the individuals.
Do we need to ask for consent from our employees to process their data?
No, as the reliance for processing and retaining their data will be down to lawful processing because of the employer’s legal obligation to deduct taxes etc. and also down to the contractual agreement in place to pay them and pay forward the taxes owed on their behalf. And also to the nature of the relationship between the employer and the employee, the status quo is in the employer’s favour so consent would not be unambiguous or freely given.
More information can be found in the GDPR section of our online support documentation on our website - Bright Contracts UK - GDPR
It is part of a series of measures announced by Business Secretary Sajid Javid to ensure employers pay the legal minimum rate and further backed up by David Cameron who announced stringent penalties for non compliant employers. These include doubling penalties for non-payment of the NMW, increasing the enforcement budget, and disqualifying those found guilty from being a company director for 15 years.
“This one-nation government is committed to making work pay and making sure hardworking people get the salary they are entitled to,” added Javid.
From next April, firms will have to pay all workers aged over 25 at least £7.20 an hour - compared to £6.50 now. The minimum wage will be increased to £9 by 2020 with Britain having one of the most generous pay guarantees in the world.
“There is no excuse for employers flouting minimum wage rules,” said Javid. “These announcements will ensure those who do try to cheat staff out of pay will feel the full force of the law.”
The new compliance team will investigate the most serious cases of employers failing to pay NMW, including the national living wage, which will be introduced from April 2016. It will have power to issue penalties, pursue prosecutions, and name and shame the most exploitative businesses.
Although the maximum penalty of £20,000 a worker remains, the calculation of penalties on those who fail to comply will increase from 100 per cent of arrears to 200 per cent. However, this will be halved if payment is made within 14 days. This reform is intended to increase compliance and ensure tough consequences for those who break the law.
The government also announced that it will work with payroll providers to ensure their software can check that staff is paid what they are entitled to. It will also improve guidance and support.
The ongoing issue of Zero Hours Contracts raised its head again recently.
At a Labour Party conference in Coventry, Ed Miliband hit out at the UK sports giant, “Sports Direct” for its high use of Zero Hours Contracts by stating "Zero-hours contracts are the way Sports Direct employs the vast majority of its workforce - 17,000 out of its 20,000 workers. “He added: "These Victorian practices, the epidemic of zero-hours contracts that we see at Sports Direct, have no place in the 21st Century."
Miliband has promised that the next Labour Government will bring in new laws giving workers a regular contract if they are working regular hours, the right to refuse demands will be available outside their contracted hours and compensation when shifts are cancelled at short notice.
Miliband’s decision to address this issue and in particular to name a specific company is a brave one after Chris Bryant, a shadow minister, had to backtrack on claims he made about Next and Tesco employing cheap foreign labour last year. It may also fuel criticism from his opponents that the party is too anti-business.
There has been recent concern that zero hours contracts do no offer enough financial stability and security. However following a recent review the Government has ruled out banning zero hours contracts completely,although it is banning the use of exclusivity clauses, where employees on zero hours contracts are only permitted to work for one employer.
This is a hot topic at the moment and one to watch in the future.
For more information on zero hours contracts please see our website;
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.