Time off

Safety representatives nominated by trade unions or elected by employees are entitled to reasonable paid time off to perform functions and undergo appropriate training.

Victimisation

An employee has the right to complain to an employment tribunal of detrimental treatment by the employer arising from the following actions by the employee:

◉ undertaking activities in connection with reducing risks to health and safety (having been designated by the employer to undertake such activities)

◉ performing functions as an acknowledged safety representative or member of a safety committee

◉ taking part in consultation with the employer on safety matters or in an election of employee representatives in accordance with specific regulations 

◉ bringing to the employer's attention, by reasonable means, matters believed to be harmful to health and safety (if either there is no safety representative or committee, or it is not practicable to contact them)

◉ leaving or refusing to return to a place of work in circumstances of serious and imminent danger

◉ taking steps to protect himself or herself or others from serious and imminent danger.

In most of the above, proposed action by the employee of the type described is also protected.  

The remedy is a complaint to the employment tribunal for a declaration and compensation (an amount that the tribunal considers just and equitable reparation for the loss). 

Time off

An employee who is an employee representative for the purposes of consultation or a candidate for such a post, has the right to reasonable time off with pay to undertake relevant functions.

Enforcement is by a claim to the employment tribunal, which will award a successful claimant the amount of pay for the time off denied or not paid for.

Victimisation

The employee has the right not to be subjected to any detrimental treatment by his or her employer on the grounds that, as an employee representative or as a candidate in an election for that post, he or she performed, or proposed to perform, relevant functions or activities.

Enforcement is by a claim to the employment tribunal, which may award compensation based on the nature of the breach and the employee’s resultant loss.

Time off

An employee who is a trustee of an occupational pension scheme has the right to reasonable time off with pay to perform appropriate duties or undergo relevant training.

Victimisation

An employee has the right not to be subjected to any detrimental treatment on the grounds that he or she performed or proposed to perform any relevant functions as a trustee of an occupational pension scheme in that employment.

'Protected' and opted-out shop workers and betting workers have the right not to be subjected to any detrimental treatment for refusing to work on Sundays.  All shop workers and betting workers have the right not to be treated detrimentally for opting out or proposing to do so.  The remedy is a complaint to the employment tribunal for a declaration and compensation.

The right is to reasonable time off to undertake public duties.  There is no statutory right to pay for this time off.  Public duties include those of a Justice of the Peace or a member of:

◉ a local authority

◉ a statutory tribunal

◉ a police authority

◉ an independent monitoring board for a prison or prison visiting committee

◉ a relevant health or education body

◉ the Environment Agency or Scottish Environment Agency

◉ Scottish Water or a Water Customer Consultation Panel.  

'Reasonable' time off depends on the circumstances.

An employee has the right not to be subjected to any detrimental treatment on the grounds that he or she has been summoned to attend jury service or is or has been absent from work for that purpose.

However, the employer’s failure to pay the employee for such absence will not be detrimental treatment unless the contract provides for payment.

A redundant employee with two years' continuous service is entitled to reasonable time off during the period of notice to look for work or arrange for training.  The employer must pay the employee, at the appropriate rate, up to a maximum of two-fifths of a week's pay.

The employment tribunal can award two-fifths of a week's pay if it finds an employer has unreasonably refused the employee time off.

If their employers employ at least 250 people, employees with at least 26 weeks’ service have the right to request time off from normal duties to undertake training that will enhance their knowledge and skills and the performance of the business. 

The employer will be under a duty to consider the request according to a prescribed procedure.  Key features are:

◉ the employee makes a written application containing information about the nature, structure and perceived purpose of the training;

◉ within 28 days, the employer must hold a meeting to discuss the application;

◉ within 14 days, the employer must issue a written decision, which, if it is to refuse the application, must state the grounds (broadly similar to those applying to a request for flexible working – or that the training will not enhance the business) and confirm a right of appeal;

◉ the employee must appeal in writing within 14 days of the decision;

◉ the employer must arrange an appeal meeting within 14 days;

◉ the employer must issue a decision on appeal within 14 days.

The employee has the right to be accompanied at meetings by a colleague of his or her choice.  

The employee can complain to the employment tribunal about their employer's disregard of the procedure's requirements.

An employee may apply to the employment tribunal for compensation if subjected to a detriment by the employer as a result of making a ‘protected disclosure’ of information about an alleged wrongdoing (‘whistle-blowing’).

The information being disclosed must be about one of the following prescribed subjects:

◉ a criminal offence

◉ a failure to comply with a legal obligation

◉ a miscarriage of justice

◉ endangering the health and safety of an individual

◉ damage to the environment

◉ concealment of any of the above.

To qualify for protection, the employee's disclosure must normally be made: 

◉ to the employer (if a worker’s employment is with people appointed by a Minister of the Crown, disclosure must be to a Minister of the Crown); or 

◉ in the reasonable belief that one of the listed subjects is involved and that the content of the disclosure is true, to a prescribed regulatory body or a legal adviser.  

Note: 

(1) It is not a requirement that a disclosure be made 'in good faith' (although there is a power for the tribunal to reduce compensation for the consequences of one not in good faith).  Therefore, a disclosure can be in the public interest even though the person made it for an ulterior motive.

(2) An employer can be liable for detrimental acts of other workers or its agents against a 'whistle-blower', subject to the defence of its having taken all reasonable steps to prevent such behaviour.

Basic principles and framework 

The General Data Protection Regulations (GDPR) and the Data Protection Act 2018 (DPA 2018) together create a new regime which governs the processing by data controllers of personal data relating to data subjects (concepts with which employers will be familiar from the Data Protection Act 1998).

In the employment context the data controller is the person or entity that determines the purposes and means of the processing of personal data (usually the employing entity), the data processor the person or company that processes data on behalf of the data controller and the data subject is the employee.

Personal data is ‘any information relating to an identified or identifiable living individual’ and that can be identified, directly or indirectly, in particular by reference to either of the following:

◉ an identifier such as a name, an identification number, location data or an online identifier

◉ one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual.

‘Processing data’ includes collection, recording, organisation, storage, altering, retrieving, using, transmitting, combining, destroying and erasing data. Employers process personal data in respect of employees in numerous ways at all stages of employment from recruitment until after employment has ended. Data controllers are under an obligation to process data in accordance with the data principles:

◉ lawfulness, fairness and transparency

◉ purpose limitation

◉ data minimisation

◉ accuracy

◉ storage limitation

◉ integrity and confidentiality

◉ accountability.

Data controllers may only process personal data if one of the lawful conditions for processing is met. In an employment context this will often be one of the following conditions:

◉ the processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of a data subject prior to entering into a contract

◉ the processing is necessary to comply with a legal obligation to which the controller is subject

◉ the processing is necessary to protect the vital interests of the data subject or another person.

Certain kinds of personal data are known as ‘special categories’ of personal data (previously sensitive personal data under the DPA 1998, although there are some differences) and require higher levels of protection. These are racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, health, sex life and sexual orientation. Employers need to have further justification for collecting, storing and using this type of personal information.

When processing special categories of personal data, employers must have a policy in place that explains the employer’s procedures for complying with the data protection principles in connection with the processing of the data and explains the employer’s policies as regards the retention and erasure of personal data processed, giving an indication of how long such personal data is likely to be retained. They must also comply with additional safeguarding requirements relating to record keeping. Employers can only process special categories of personal data in certain circumstances, including where they need to carry out their legal obligations or exercise rights in connection with employment, in some cases with explicit written consent where it is needed in the public interest (for example for equal opportunities monitoring), where it is needed in relation to legal claims or where it is needed to protect the data subject’s interests (or someone else’s interests) and they are not capable of giving consent.

Employees, as data subjects, have various rights under the GDPR in some circumstances to:

◉ request access to their personal information (commonly known as a ‘data subject access request’)

◉ request correction of the personal information that is held about them

◉ request erasure of their personal information

◉ object to processing of their personal information

◉ request the restriction of processing of their personal information

◉ request the transfer of your personal information to another party.

Employers need to make employees aware of their rights under the GDPR. Most employers process data, which means that they must be registered with the Information Commissioner as doing so.

Employees’ access to their personal data

Employees are entitled to see what data are held on them. Access to the data must normally be given within one month of the request although the employer may extend that period by two months where necessary, taking into account the complexity and number of requests. If the data identify a third person, the employee does not have an automatic right to see those data. Either the consent of the third party must first be obtained, or identifying features must be removed.

There is no general legal duty to provide a reference about an employee or ex-employee.  Employers should, however, be mindful of any potential claim for victimisation, during or after employment, under the various laws against discrimination.

When a reference is provided, there is a legal duty of care, both to the person it is about and to the person it is being sent to.  This requirement can be met if the reference is factual and fair.

The right

A worker has the right, on reasonable request, to be accompanied at any grievance or disciplinary hearing by a work colleague or trade union representative.

A grievance hearing is a meeting to discuss a failure by an employer to perform a duty owed to a worker.  

A disciplinary hearing is one which could result in:

 ◉ a formal warning or some other action; or 

 ◉ the confirmation of a warning or other action (that is, an appeal).

A hearing should be postponed for a maximum of five days if the chosen companion cannot attend.

The limits of the companion's role

The companion (who must be allowed paid time off work) is permitted:

◉ to put the worker’s case

◉ to sum up that case

◉ to respond on the worker’s behalf to any view expressed at the hearing (but not to answer questions on behalf of the worker).  

What if the employer refuses to allow the worker to be accompanied?

The remedy is a complaint to the employment tribunal and an award of up to two weeks’ pay (at a maximum of £525 per week).  Also, a worker may seek compensation from the employment tribunal if subjected to a detriment for exercising the right to be accompanied or for acting as the companion of another worker.

Note: the requirement for a worker's accompaniment request to be 'reasonable' does not allow the employer to refuse accompaniment by a particular colleague chosen by the worker.  

The Acas Code of Practice on disciplinary and grievance procedures 

This provides practical guidance and sets out the principles for handling matters of discipline and grievance.  The employment tribunal will take the code into account when considering relevant cases.  It can adjust any award by up to 25% for unreasonable failure to comply with the code.  So, if the tribunal feels that an employer has unreasonably failed to follow the guidance in the code, it can increase an award.  If it feels an employee has failed to follow the guidance, it can reduce any award by up to 25%.

For employment or insurance reasons, an employer may obtain a report from a medical practitioner who is responsible for the clinical care of an employee.  Before the employer can get the report, the employee must be told that the employer is to apply for the medical information and the employee must give consent.  

The employee must also be told his or her rights to do with the report.  These are: 

◉ to withhold consent to the application for the report or the disclosure of its contents

◉ to see the report before it is given to the employer

◉ to ask for a copy of the report within six months of its supply

◉ to amend any part of the report that he or she considers inaccurate or misleading.

A medical practitioner may refuse to allow a person to see a report if doing so would cause serious physical or mental harm, or would reveal the identity of someone who has supplied information for the report.

An employee who refuses consent for a medical report could be made subject to disciplinary action and/or the withdrawal of sick pay.  Any decision by the employer about the employee's suitability for continued employment or for a particular type of work will have to be taken on the basis of other information available.

It is unlawful for an employer to subject a ZHW to any detrimental treatment for breaching an exclusivity clause in a ZHC or ZHA.

A successful complaint to the employment tribunal will result in an award of compensation that is just and equitable in the circumstances.