June employment law round-up

New ICO guidance for employers

The Information Commissioner’s Office (ICO) has published new guidance, aimed at businesses and employers, on dealing with subject access requests (SARs) in accordance with the Data Protection Act 2018 and the General Data Protection Regulation (GDPR).

Individuals have the right of access to their data, and can request a copy of their personal information by making a SAR. In the employment context this might include HR records, such as sickness, disciplinary and performance records.

The ICO guidance is in the form of detailed and practical Q&A for employers. It includes the circumstances in which the employer can lawfully withhold information, and whether it is necessary to comply with a SAR if the worker is going through a tribunal or grievance process.

This new guidance follows recent draft guidance published by the ICO for consultation, on workers’ health information and monitoring at work. Further draft guidance is anticipated in relation to recruitment and selection and employment records.

Handling SARs can be complex and time-consuming for employers, and is the source of a large volume of complaints to the ICO – totalling nearly 16,000 in 2022-2023. A failure on the part of an organisation to respond to an SAR properly (or at all) can result in enforcement measures by the ICO, including a reprimand or fine.

Staff experiencing fertility issues

A new guide for employers on supporting staff experiencing fertility challenges, investigation and treatment has been published by the CIPD.

The guide notes that relatively few organisations have policies or guidance in place to support people having fertility treatment – around 27% of those surveyed had either a standalone policy or include provision as part of a wider policy. The guide is intended to bridge this gap by encouraging organisations to view fertility as an important workplace wellbeing issue and by providing practical guidance for employers, recognising that it is often emotionally draining, socially challenging and financially tough for those who experience it.

The aims of the guide are to:

• raise awareness of the prevalence and impact of fertility challenges, investigations and treatment;
• highlight the need for effective workplace support and what that might look like; and
• inspire employers to create and environment where individuals feel able to access support if they want to.

The guide includes a detailed section on how to manage absence and leave with compassion and flexibility, developing a supportive culture to encourage genuine reporting of the reasons for sickness absence. Absence management training and guidance for line managers should include awareness about fertility challenges, investigations and treatment, and emphasise the requirement for confidentiality.

Various options for organisations to consider in relation to fertility treatment include:

• paid or unpaid time off for fertility investigations and treatment;
• flexible hours or remote-working options;
• temporary adjustments to working hours; and
• compassionate or bereavement leave when required, if treatment is unsuccessful or ends in miscarriage.

The guide points to the impact of effective employer support on employees’ mental well-being, helping them to remain in work and promoting long-term commitment to the organisation.

New BSI standards

The British Standards Institute (BSI) issues ‘standards’ to help employers develop best practice in certain areas, with the option of gaining certification if the standard is met.

A new BSI standard has recently been published, on menstruation, menstrual health and menopause in the workplace (BS 30416). This standard has been developed following extensive consultation with experts and the public, and with input from large businesses including Wm Morrison and BT as well as UNISON and many other organisations.

The standard sets out practical recommendations for workplace adjustments, plus strategies to sit alongside existing wellbeing initiatives, to help meet the needs of employees experiencing menopause or menstruation. Recent research from the Fawcett Society estimates that 10% of women experiencing menopause have left the workplace, often at their career peak, due to their symptoms. The figure rises to 25% for those with more severe symptoms.

Steps for employers to consider under the standard include:

• considering the workplace culture to determine whether there is a general awareness of menstruation and menopause, and opportunities for support
• whether line managers and HR managers have sufficient training and suitable resources
• reviewing the workplace environment and toilet facilities
• checking whether workplace policies consider menstruation and menopause
• considering options for individual work adjustments, such as timing of breaks and access to individual temperature controls.

The BSI has also recently published a new code of practice on diversity, equity and inclusion in the workplace (PAS 1948). This code highlights the business case for DEI and provides practical guidance and workplace tools for employers to develop a framework and culture that encourages, promotes and supports diversity in the workplace. It is aimed at organisations of all sizes and in all sectors, to help them to implement a DEI framework that works for them.

Companies ‘named and shamed’ for failing to pay NMW

As part of the Government’s enforcement strategy for the national minimum wage (NMW), over 200 businesses were recently named for failing to pay the NMW to their workers. It relates to investigations conducted between 2017 and 2019.

The list of employers includes a number of high-profile companies, including WH Smith, Lloyds Pharmacy, Marks and Spencer and Argos. Employers were ordered to repay a total of almost £5 million to the approximately 63,000 affected workers, plus penalties of almost £7 million.

A large proportion of the underpayments is likely to result from technical breaches of the NMW by employers, rather than deliberately choosing not to pay workers at the appropriate rate. WH Smith, for example, claimed that the error was due to a misinterpretation of how the NMW applied to its uniform policy. This illustrates the complexities of applying the NMW in practice but even where an underpayment is unintentional, HMRC will take enforcement action if it identifies a breach.