In this webinar Martin Chitty, Andrew Litchfield and Jocelyn Paulley of Gowling WLG and David Woakes of Advantage Group UK discuss employment, data protection and health and safety issues to consider in relation to remote working.
David Woakes: Good morning everybody this is David Woakes from the Advantage Group. We are just waiting for a few more, we have quite a number of participants just joining so, as ever, when we commence these activities as we are all getting used to now. We will just give it another couple of moments longer if that is ok, just to let everybody join in. So if you just bear with us for just 90 seconds. We will let a few more people join in and then I will do the introductions.
OK. So, I will kick off the session if that is ok. Just to reintroduce myself, my name is David Woakes. I am the director for our technology and project consultancy business. Advantage Group is a business that many of you will have heard of. More typically I would suggest it is through a brand in London which is Crone Corkill. Crone have been supplying services for many years and the Advantage Group has been around for over 40 years now. We have a number of different business models and we have a number of activities around the country and we are really pleased to be able to partner with a number of other businesses as part of our wider activities.
So the four core services that we provide, and I am not going to go into this in any great detail, are shown on the screen. Obviously as a very strong and consistent recruitment business specialising in a number of different business fields we are able to attract and identify talent through various channels and various media and we are as strong as shown in the previous slide as part of the group of the Recruit Holdings business we actually own people like Indeed and Glassdoor. This gives us a strong digital programme. Consultancy services which is what this is part of today is around providing a lot more support and advice to businesses and then also what we are looking to do is extend our reach and our capability by making sure that we continue with innovation.
So to move in now into what we are doing with Gowling WLG and what the day is all about or the session this morning. So I would like to pass over now and introduce you to the Gowling team. We are really proud to be a partner with Gowling WLG and for them to take the time and effort to put this session together and to be able to provide you with some information. I believe the agenda items are going to be starting off with Martin and then moving through into Andrew and then finishing off with Jocelyn. So that is enough of me. I will do a little bit at the end. Just to give you a couple of points, everybody does seem to have muted their sound and video, thank you. There will be the Q&A activity, please post your questions using the Q&A function at the bottom of the screen and just at the end of the presentation there will be a short survey that we will ask you to complete. Just a few slides using Survey Monkey. But Martin over to you please.
Martin Chitty: Right, thanks David and good morning everybody. It is very nice to be with you today. I am going to talk about some employment issues about home working. Mine is very much at the let's just think about three or four things at the end of the spectrum here and it does feed also into the issues that Andrew and Jocelyn are going to be talking about in a minute or two. So some of this will sound a bit mundane but it is the sort of basic compliance things that we ought to be concentrating on because although people are working at home they are still our employees, we have still got obligations under various pieces of legislation in terms of the Employment Rights Act, making sure they and we know what the rules of the game are going to be.
So my first point is this. If we are going to have people working from home let's think about whether we need to review and amend any of the contract terms and conditions. So what do I mean by that? One of the most obvious of course is that what is going to be their place of work because depending on your place of work there might be some tax issues and there is going to be a separate session on that next week. So let's redefine where someone's place of work is going to be. You have an obligation to identify peoples working hours and I am going to come back to that under the working time regulation point. But what are peoples working hours going to be? Are they the same as normal, what are the normal working hours? I think people have found working from home during the lockdown period has some advantages and some disadvantages as well, so we do need to think about that. Tied into a degree with what Jocelyn is going to be talking about, there are going to be issues about confidentiality and security. I am not going to tread on her territory at this point but you do need to think about are there rules which you want in place about how people treat information which they are working on, papers which they have got to work from, do they need to be locked away for instance? What are the security protocols you want to implement? If they are using hard copy documents, are we going to make clear how we need them to be disposed of going forward? Do we need them to have shredders or can they be dealt with by some other confidential process of managing waste?; So those are some basic issues, you might say that's employment law 101.; Another aspect of that and this I will concede is a slightly nerdy point, but you will know that from April there were some new provisions under the Employment Rights Act about section 1 statements, these are the minimum statement of terms and conditions you have to provide. They now apply to workers as well as to employees but there is a point in there about a transitional arrangement in relation to pre-existing employees which is that if you change any of their terms and conditions you need to bring them up to date with the new form of section 1 statement, which is a bit more complicated and requires a bit more information than the old form that we are used. Now, nothing has changed in relation to the fact that if you don't there is very little the individual can do about it unless they bring some other sort of claim. So there is no freestanding claim they can bring but if we are going to go to the point of dealing with the first set of issues I identified about contract terms and conditions that probably cuts into the issues around section 1 statement, so you might trigger an obligation there. But do have a think about that, we can talk about that later if that would be helpful.
I have talked about confidentiality, just to touch on this point a little further. Certainly if people are working from home and they are working on line, are we clear about protocols on that? Are we going to require that they log out every evening? It is very easy speaking from personal experience to forget to log off and that can cause some system security issues and again going back to the point I raised before about how do we need people to deal with papers whilst they are working at home. It is not their normal work place and people tend to become, I think, generalising, a little bit more sloppy when they are working from home in that respect.
So two final things to talk about. The first is trust and confidence and you will all know that this is a term implied into employment contracts and it is really about the nature of the relationship with people behaving in an appropriate way. So as a combination of how you as the employer treat them as against their general behaviour and I decide can act in breach of that obligation you do need to be careful. Quite a lot of it in this situation is going to be about the way in which work is managed, about how equipment is provided. Do we have people working at home on inadequate equipment? Are we providing the support we ought to in terms of providing them with screens to make their working environment better and that cuts across some of the issues that Andrew is talking about as well and the question of demands by managers, working from home does not mean working all the time. I will come onto that under working time as well. So if managers place excessive demands on people simply because they are working at home already then there is going to be an issue about mutual trust and confidence. Where does that lead? Well it can lead to a position where somebody is entitled to resign and claim constructive dismissal. This is not really where you want to be assuming of course that both people are worthwhile and are contributing to the business.
So my final point is about working time regulations. In some respects the bane of everybody's life. But again simply because somebody is working from home doesn't mean that the working time regulations no longer apply and this leads directly into some of the issues that Jocelyn is going to be talking about in terms of monitoring. We need to understand what peoples working hours are and it is very difficult to do that unless we have some sort of monitoring of when they are actually working and there are questions of course about what is work, simply having logged on does not equate with working. But do think about these points. There are obligations under the working time regulations to provide for minimum rest breaks every six hours or after six hours in a working day and between periods of work. So that's an 11 hour break and then there is a mandatory break of what we would normally identify as the weekend as the minimum period of about 35 hours over a weekend and you have to do that. So as an employer ensuring that you can do that and indeed that you are monitoring peoples working practices is fundamentally important. You may want to think about opt outs, whether you already have those in place. I think one of the experiences we have seen as an employer and we have seen with lots and lots of clients during this period is that peoples' working day, the nature of it may have changed they may be starting later and they be finishing later or vice versa, but equally people have found it quite difficult to detach from working so they have found their working day actually extending. Now that may not get you into a problem with averaging a 48 hour week but it is something worth considering in terms of the information that you are trying to gather about peoples' working arrangements.
Right that is quite enough from me and I am going to hand on to Andrew.
Andrew Litchfield: Morning everybody. Hi. Thank you for being here, thank you for listening. Health and safety issues from remote working. I think the way to think about this is to think about what is different under the new normal life that we are living and what is the same. So what is different of course is we have a big new risk which none of us knew very much about at all six or so months ago which is the risk of transmission of Covid. That in turn has led to another big change, which is obvious in that lots more of us are working remotely or much longer and extended periods of time. So those are the two big things that do change, those are the two things which are now becoming more and more normal, those are the things which are different. But what is the same actually is in relation to health and safety law. There have been some new bits and bobs of legislation that emerged through lockdown but the vast majority of health and safety law remains absolutely unchanged and there is nothing new, and that&'s fine because what health and safety law does is it sets up a duty and then effectively leaves it to an employer to work out what to do about discharging that duty. It doesn't set up a set of prescriptive generally prescriptive rules and regulations about what you have to do, you have to work it for yourself.
So the general duty has been around since 1974. Nothing new about the general duty at all but it is just worth thinking about it as a result of the new set of circumstances we are now in. So the general duty under the Health & Safety at Work Act places an overarching duty on an employer to ensure so far as reasonably practicable that employees are not exposed to risk to their health, safety and well-being. I just want to pick up three words in that duty. So an employer must ensure and think about this in relation to the new ways that we are all working. Your duty is to ensure which means to make certain that something doesn't happen. It is a tough duty, as you would expect. But it is the duty to ensure so far as reasonably practicable that employers are not exposed to risks, risks is another key word. There doesn't have to be any form of physical or mental injury or illness for this duty to kick in. It is the risk of those things from happening. Critical to understand that and remember that in the current context. Risk is the possibility of danger. So ensure that people are not exposed to the possibility of danger. It's a tough burden and then the final word to emphasise is that you have to do that in relation to peoples' health, safety and well-being. I think we are more advanced in 2020 than perhaps the legislation drafts were in 1974 about mental illness but there is no question that this duty applies to mental health as well as to the injuries that people might suffer.
Just a quick word on the consequences of breaching that duty. That is a criminal offence. If the employer breaches that duty, so fails to do what I was just describing they commit a criminal offence. You can't contract out of that duty and you can't ensure yourself against the sanctions of that breach and the sanctions these days are significant in terms of fines the courts will hand out. There will also be civil claims for damages and unhappy and disgruntled employees who are not able to work. So the consequences are serious. So that is the overarching duty briefly. But as I said there is nothing new about the risks inherent at sitting at a desk and working at a screen and so we have and have had since 1992 a specific set of regulations which are designed to deal with the particular risks that we are talking about. Mainly the health and safety displacement equipment breaks. They are towards the more prescriptive end of the health and safety legal spectrum but effectively what they do is they require an employer to carry out a suitable and sufficient risk assessment of the risks that are inherent in working at a desk at a work station and there is a requirement that those risk assessments must be kept under review if they are no longer valid or if there has been a significant change and I think we will probably all agree there has been a significant change and that of course means that we have to do risk assessments for the circumstances that people are now in i.e. working from home. The duty then is for the employer to take control measures to reduce those risks which it has just identified in the risk assessment to the lowest extent reasonably practicable and that is where you get into all the information about ensuring people take breaks, they have got the right equipment and kit to do the work safely, eye sight tests, training and providing them with information about what they need to do to manage their own risk.
So just before I finish a couple of practical points. If you are looking for guidance there is plenty of guidance around. The HSC website an excellent place to start it has been updated as a result of COVID in this area and it's got lots and lots of very useful practical hints and tips about what you need to do in terms of check lists and pro forma risk assessment for example and practical guidance. There is a link in there to some information that has been produced by the Chartered Institute of Ergonomics & Human Factors which is very short, very practical, very helpful, lots of helpful pictures. A really good place to start for a home risk assessment and in terms of providing people with the information that they might need. I think it is worth at this point that the display screen regulations direct you a little bit towards the physical side, upper limb disorder primarily and eye sight issues that might arise from working from home or working in these sort of circumstances. I think it is easy to forget about and to underestimate the mental health risk which we have and Martin touched on this just now. It is important to review the risk assessment to take account of that wellbeing aspect of the duty and to have thought about that and to have thought about some of the control measures that might be appropriate there as well and in terms of good practice I think it is self-evident obvious critical though to stay in touch with people. It is slightly harder to do because they are more remote but really important to consult with them about how they are doing and what they are doing and how they are doing it. Talk to them, stay in touch with them. These are all risks which there may well be some lead in time to and you might get early warning about and the earlier that you find out that someone might be struggling or someone might be starting to develop some physical symptoms, the easier and the more chance you have of resolving it.
I am going to pause there and then hand over to Jocelyn who is going to talk about data.
Jocelyn Paulley: What I am going to talk about is remote monitoring of employees. Obviously this has become much more of a live topic now employers who may previously not ever have had to deal with employees working from home are looking at that or even in other professions where working from home had been a practice that had been adopted, it is now applying to an entire workforce every single day of the week. Monitoring of employees though is not an entirely new topic, there have always been scenarios where some kind of monitoring has been in place. Typically if you think about calls to a customer contact centre are usually recorded or lorry drivers often have some kind of location tracking in their vehicles which is obviously a remote type of monitoring in itself because they aren't sat in an office, or things like access cards so employees can come in and out buildings and there the structure around those and the reasons for doing them for those businesses would operate those kinds of roles are fairly well trodden now. The new context is the remote aspect and it applied across a workforce and some different reasons for one thing to monitor employees going back to some of the factors that Martin mentioned around working time regulations and actually ensuring that people do switch off from their jobs as well and obviously more a topic because employees are not sat in an office where line managers can keep an eye on what is going on in a fairly unstructured way that addresses some of those issues. As far as the legal framework we need to think about when you are looking at monitoring. We have a little bit of human rights there and then you are looking at data protection, so the GDPR and the Data Protection Act 2018 in this country. Where those get you to is that monitoring is fundamentally an intrusion activity in whatever context you are monitoring and that is because Article 8 of the Human Rights Act gives everyone a right to privacy and applies whether you are at work or at home is a degree of privacy that individuals can expect is different depending on whether you are at home or at work and here we are now in a new context where people are at home but also doing their work. It is finding the right balance in the new context that we have if everyone is now working from home remotely.
The key question in the data protection context is what your lawful ground for processing is. Selecting one from the list that is set out in the GDPR and most businesses here are going to be relying on their legitimate interest. There will be some instances where you may be able to appoint to a legal obligation that the employer is complying with more in Andrew's health and safety context but for a lot of the time the more general monitoring and we will talk about some scenarios later. We will be looking at the business' legitimate interest. That full ground for processing is relying on a legitimate interest provided that the interest outweighs any harm caused to the rights and freedoms with individuals. So put slightly more into context, does the purpose of the monitoring outweigh the adverse effect that the monitoring might have on individuals. Doing that assessment we call a legitimate interest assessment only you work through principles and the Information Commissioners Office has guidance on these factors and principles on their website if you ever want to look at it for yourself to break it down.
First of all you have to identify what is the legitimate interest I am seeking to address. You have to be able to articulate it. What are you actually trying to achieve? What is the benefit for the business and what harm might be caused if you didn't carry out the monitoring and you didn't address those benefits? How important are they to your business because they will give you a greater legitimate interest and what is the harm if you don't do it? You have to consider is the processing I want to carry out or the monitoring I want to carry out actually necessary to achieve that particular aim. Whilst that wording does not appear in the legitimate interest assessment it is another fundamental principle of the GDPR. What it requires you to do is think about other ways in which you might be able to achieve the legitimate interest you have identified. So that you narrow down the date that you collect about individuals and the monitoring to a smallest possible of what is truly necessary. The thinking about is there another way to go about it that might be less intrusive so in practical terms is the monitoring going to apply all the time to everyone. Was it only particular roles or can I achieve my aim by having a spot test at particular times of day or on particular individuals. Can I limit it by geography? Any other parameters that make sense in the particular context in which you are operating. What is my aim, is it necessary and then how does that balance against the harm that might be caused to individuals? So is the monitoring I am going to do something that individuals will expect? Is the data I am going to catch particularly sensitive in any way again thinking that of context, people are at home, are you going to be endanger of capturing anything about the home environment behind them or other people who might be in that environment with them? Is someone likely to think that it is intrusive what we are doing bearing in mind the relationship between employer/employee and the trust that you are trying to build in that relationship? What kind of impact might the monitoring have on them? Martin and Andrew have spoken about the mental aspect, mental wellbeing, how does an employee feel if they perceive than an employer was monitoring and looking at what they were doing at all times. Once you have run through that test and you will see looking at those factors how context specific this is which is why it is hard to give general rules when you are talking about monitoring as you have to apply that to your own business, people, roles, geography etc. You then have to be able to explain to your people what you are doing. Transparency goes to the heart of GDPR or to an organisation's accountability to tell people what their interest is that you are trying to achieve, the reason for the monitoring and how you are going to carry it out. So people have to know the rules of the game that is going on and how you are going to be recording information about them and what you are going to be using it for.
So if we go on to look at some particular scenarios around different types of monitoring. So try to apply some of those principles to some specific context. You will often see employers asking well can I use some kind of monitoring to check that people are not time wasting. Are they actually doing the work given so that I don't have a line manager being able to see if they are in the office or hearing them on the phone. You have to work through all of the factors that I talked about on the previous screen. How are people going to feel if there a sense that an employer is watching them all the time? Is this actually watching them through a video with audio? Is it checking how many emails are being sent, is it checking how many documents are saved? What is a proportionate response to see that people are actually doing the work they are contracted to do? I think it helps if you think about it how you would approach this problem in an office context. Actually a lot of the time there are none of those checks in an office environment to see that people are doing that, so what is the justification of suddenly needing to do it just because people are working from home. People sometimes throw in the question in terms of productivity. I think those who are using productivity as a measure of assessing performance that might go to appraisals or pay or bonuses. It is really important people understand what you are looking to assess and how you are going to be doing it. Again there are lots of other factors that people might bring to show why they appear to be more or less productive such as fitness, particularly given recent events. It could be that particular day they are not busy on emails or focussing on a particular document Again given recent events they could have been home schooling children and working different hours. It is important to think about real context on what you might do that fits your employees working pattern.
Companies also look at software and automatic tools to ensure that materials going in and out of business are materials people should be handling. So we haven't got someone using their work email address or uses their private email address and having lots of emails coming in that are purely friends related and things to do with their personal life. You also want to make sure people aren't accessing materials that are either illegal or verging on being illegal so gambling or pornographic material or anything like that. You might have software set up that is checking for those kind of materials entering and leaving the work systems. Equally to protect company systems from virus attacks or to ensure that large amounts of date is not leaving the system which might personal data about employees or any kind of company intellectual property and there it is quite easy to see what the legitimate interest is that the business is trying to protect and then you have brain monitoring to achieve that aim and nothing more.
Location tracking in vehicles is one we often get queries on and again it depends on the different context on what you are looking to do with that information. If you are linking it back to what Martin was talking about working time regulations and ensuring that someone whose job it is to drive takes the appropriate rests and they can tell using location data that would be a valid use of that information. It wouldn't be a valid use though to use the location tracking to see where a driver goes to at the end of each day, do they go back to their house or to somewhere else? That is not something that an employer needs to know even if the location tracking is still running, so could it be turned off after those hours or blanked out so that no one can access it. You have different factors whether you are thinking about someone who is driving for a living or maybe someone using a company car where maybe the location tracking is just for insurance purposes if there was an accident.
We see questions around the use of instant messaging and WhatsApp. These systems were obviously in use by companies prior to the lockdown but because we are now all working remotely employees are relying on them much more heavily. The important thing here is again to ensure employees know what these systems are intended to be used for as in there can be a misconception that an instant message or a WhatsApp is a bit like talking to someone and chatting live but of course it isn't because i's a digital message so it leaves a trace often these messages are recorded on central systems for a period of time so the company is responsible for messages that are being sent. So it is important to be really clear with employees whether these groups are intended for work purposes or not, for example, in our team we did set up a WhatsApp group to replace the kind of social chat that you would get within the office but that is not an environment in which we would discuss client work because clearly there is confidentiality around the WhatsApp group is different to what we can have in place on our central systems.
Recording meetings is another query we have seen regularly recently because using Zoom it is a very easy thing to do. Just like this Webinar is being recorded. Again you have to ask yourself what is the purpose of recording the meeting. Here as a marketing angle. It might be that it is a training session where it would be perfectly valid for me as the trainer to expect that a session might be recorded so that those who couldn't attend can still be used in the future. What wouldn't be necessary though is to record the video footage that goes with all the attendees to that training session. There is no need for that to be recorded in order to reuse the video as training materials for someone else.
Whatever you decide to do in all of these scenarios, the really important thing is to record what you decide to do and why. That goes again to accountability which one of the four GDPR principles of employers to show that they have thought about privacy measures and designed their monitoring to record those privacy measures and if the monitoring was ever then challenged by an individual or a regulator at a later date, a very powerful tool to be able to show notes that a decision or a record of your legitimate interest assessment test that you did at the time to show all the factors that you considered because then it proves to a regulatory that you were alive to the issues, you were thinking about privacy and even if the regulator ultimately decides you didn't get it quite right, you can't be criticised for not having at least considered the factors in the first place. Thanks very much.
I think David you will now open the floor to a Q&A.
David: Yes absolutely thanks very much Jocelyn. Some really interesting points there raised by everybody and some quite informative, we have been involved with this for a while and seeing the access to a number of a different clients with different issues. So we have a number of questions that have already been posed so we will touch on those but please for everybody else feel free to ask any more of those questions. So one is actually, I will start with the first one that we have there which is actually posted by one of our directors which you touched on earlier Jocelyn around WhatsApp and the access to those groups. More particularly if they are actually on personal phones which I think is quite regular. Any views on that side of things?
Jocelyn: So this comes back to what rules have the company set about use of WhatsApp in different contexts. If the company has blessed employees using WhatsApp on their own phones then what material is the company expecting to be discussed on those phones and in those groups? So if a company is encouraging employees to set up social groups to replace the social interaction you would have had in the office and that is not on personal phones, then a company is not going to take much responsibility for that. But if you are encouraging employees to use WhatsApp on personal phones to discuss company related matters you need to think about how am I going to ensure that employees continue to act in a responsible way and not discriminatory and let them know to what extent they might ever be required to share that information and when you might need to see it. So a lot of this is how it mainly falls up front to make sure everybody understand what they are and are not allowed to do.
David: Yes, I think as technology kicks in it is going to be something more and more as we become more used to the new norm as it is all being called so probably follows on into the second question there which is around the monitoring of the chat facilities obviously MST, Zoom, whatever else you are using as we are here. We just out of interest, we issued some guidelines really before all of this started as to what was to be expected from us as individuals as we were being client facing. So I think that is a good starting point. But again this probably sits again with you Jocelyn, I think, doesn't it?
Jocelyn: Yes it would do. I think I am going to add to the question with a question as lawyers often do somewhat frustratingly. What is the purpose of monitoring chat facilities? What is it you are actually looking to do? Because an employer wouldn&'t expect in an office environment to have ears everywhere and be listening to the conversations all employees are having all the time. So are you saying you need to record the chat facilities because people actually will be discussing client work there and then you treat those conversations as you would do an email? Or are you saying you are recording them because you don't want people sharing company secrets and there is reason to believe that maybe people are doing that? It is not just a question about can I monitor or what am I monitoring for and is that a proportionate way to achieve whatever the aim is?
David: Yes I think there is a going to be a lot of different approaches for people and the technology will again advance so as we get used to what's going to be in place for the remaining part of the year at least and as offices start to come back in or work places start to come back, I am sure there will be further developments and further activity.
There is quite an interesting question at the bottom here around using the location checking, location tracking rather to check mileage claims. Again we are actually working on the principle that we will be doing less mileage in the next few months as we have done. I know my car has certainly been sat on the drive for the majority of the time.
Jocelyn: It comes back to what was the location tracking put in place for in the first place. Were employees ever told that it might be used as a way of double checking mileage claims and that would be again in the context of are these employees how are primarily based on their car, so their entire job revolves around how far their driving because maybe the petrol cost is a huge expense if you think about someone who was a distributor or any kind of logistics industry. That is one of the focusses of your business. If it is much more incidental use, then is that a proportionate way to check mileage claims, why are you not trusting what employees are saying. Are you going to check that location data for every single journey everyone does? Or would you just spot check a few throughout the year to see that over all employees are not submitting particularly extreme claims and whatever you decide to do again tell people up front. If you are collecting new data now we are remote working and you have having to do things more remotely, businesses must be updating employee handbooks, privacy notices but tell employees that this is what we are doing and that should all be done in advance of new measures being put in place. We have to be very reactive during lockdown and there was a notification from the ICO acknowledging that businesses had to react so we are not going to come clamping down on people seemingly hard if they didn't dot every I and cross every T from a data protection perspective but acknowledging doesn't mean you can ignore the legislation. We would expect to see employees if he had to going back and doing it slightly retrospectively at the very least ideally you should be trying to do in parallel with new measures that they are bringing but they did recognise people had to move quickly to respond to the lockdown when it came.
David: Yes I think that is something that is happened in most business areas isn't it? It has all moved so quickly there is a level of I suppose an approach which is but it doesn't have dot every I and cross every T, we will have some time to catch up.& I think you also touched on a key word there for me in this whole process which is trust. Because we are doing more of this type of webinar call and I think certainly what the gents earlier were talking about in term of the amount of time and activity that we are actually spending focussed in this type of webinar is quite crucial.
We have got one more question that has come through but I have got one in between if I can which was around the HSE regulations. So I think this will be you Andrew which was are there any specific amendments that have come from this type of approach that is already starting to come into the requirements or regulations that are expected to come through? So changes to HSE regulations based on working from home.
Andrew: No there haven't been any changes to the regulations themselves and I think HSE would expect employers to be discharging the duties that I described in exactly the same way that they do in the office or do in the work place generally just because people are working from home doesn't make any difference. What I think probably we have seen is an emphasis or a change of emphasis perhaps on enforcement and how the HSE are going about and its local authorities as well, how enforcers are going about investigating and looking into what is happening and there is no doubt that and as you would expect the focus of that enforcement activity has been on how employers are managing the COVID transmission risk at the moment rather than how they are dealing with risks arising from a remote working. So, and I think that is going to remain the case for the foreseeable future certainly until we have this thing under control, but certainly if there is an increase in the amount of claims or complaints or reports of injuries coming from people working from home then that focus will change and there will be an emphasis on this risk as opposed to the transmission.
David: Yes definitely. My sort of follow on question to that Martin I think this one may be more you is around do we expect changes to the GDPR regulations, sorry I don't know which one of you might be the best one to answer but I would imagine because we are now gathering so much more data, so much more information and as we all are here, you know, having visibility of our home environments, would we anticipate there may be some changes to the GDPR regulations?
Jocelyn: I can take that Martin.
Martin: That is very kind of you.
David : Sorry.
Jocelyn: Not at all. The ICO as people will have seen during lockdown regularly puts out new guidance on topics where they are aware people have questions and certainly have done during lockdown but I don't expect we would see a change to the regulations themselves or the Data Protection Act because what the legislation does is set out a structure within which you have to think about various issues and the kind of tests I was walking through there, the legitimate interest assessment and looking at how you balance that with individuals rights and freedoms. What it doesn't do is prescriptively set out in different scenarios checkbox items that people can do or can't do. It recognises that context drives everything and what you might be able to justify in one place you can't in another and it puts the onus very much on the controllers of the data, so in this instance, employers to work out how what they are doing fits within the structure and the framework of the legislation. So guidance yes and the ICO guidance is often very helpful at least at a basic level it doesn't always address the more complex scenarios and their website is a wealth of resources.
David: OK, great stuff, thank you for that. We have got two questions to go on here. The first one being presentation and all of the material will be available afterwards. This actually is being recorded so that it will be available by various websites, both companies websites and also social media but the slides will be shared with everybody afterwards as well and I think this is quite an interesting question that we have got on the end here which is as we are all starting to return to work and certainly we have started to identify a timescale when we will be returning to our offices on a rota basis more than anything else. But the question is can an employer force an individual, an employee to come back to the office.
Martin: Right unfortunately that is definitely one for me. I think the blunt answer to that is no in the sense it is very difficult actually force people to do anything in the employment context and the reason I say no is this. It is a combination of different issues. One is about, there are some specific rights under the Employment Rights Act to do with perception of risk, perception of health and safety which do apply so people can legitimately absent themselves from the working environment if they can establish a reasonable belief in a degree of risk and they may choose to do that. So that is the most fundamental and most obvious level. Other issues will be about perception of risk of third parties, so I may not think that I personally am at risk but a family member may be if I come into contact with people so that is shielding and all the sorts of issues which seem at the moment. I think employers need to be careful as well not to react too quickly, not to have too much of a knee-jerk reaction where people are articulating these concerns. For the reasons I have described and also because individuals may raise an issue which actually presents them as whistle blowers so an argument might be well, I don't believe that you are doing all of the good things that Andrew has described in terms of safety in the workplace, I don't think your COVID-19 protocols are adequate, I don't think they have protection, that amounts to a breach for legal obligation or I have a reasonable belief that that is a reasonable obligation and until you sort it out I am not coming back and having raised it in that way if you sack me because I won't come to work and you are doing that because of the whistle blowing issue and that creates a sizeable risk because as people on the session will know claims for unfair dismissal have no upper limit on the amount of the award. So all of those things are in place. So much of this goes back to the issue you have raised David which is trust and also confidence that you, we as employers are going to the right thing and also all of our fellow employees are going to behave in the right way as well because this is about group behaviours. As an example of that just over the last couple of weeks there is much greater wearing of face masks when people are out and about and in shops. I know it has been made mandatory but I don't get the impression from being out and about myself that people are pushing back on that and there seem to be very instances of people choosing to argue that they shouldn't have to. So there is going to be a lot of that about societal practice, normal behaviour and those sorts of things.
David: Yes I agree I think it is a wider issue that we are going to have to face as a society and the return to work plan or activities of so many businesses will have to change. It will be a moving feast I think and circumstances may well dictate that. We operate nationally, as you do and it will have a difference per location I am sure so it is not one answer that fits all.
Well that is all of the questions we have got from there. Lucy if I could ask you to just move on to my final couple of slides. If anybody does have any more questions please still post them in there. What I just wanted to touch on was where we as the Advantage Group follow on from really. I think a lot of the comments that have been mentioned from the panel here and this is what we have put in place as part of our secure restart programme. We will gladly be sharing all of this information with everybody as part of this programme and sharing the presentation slides of the full secure restart activity but you can see that it is about business readiness and then how and where we can support you. Not just as ourselves as individuals but by the partnerships that we have with businesses like Gowling WLG. So we have really developed something which we think will work around the people issues more than anything else.
My final slide, it's an offer really. It is something that we have developed with many companies now is to provide what we can an optics report, so this will actually give you some insight as to what is going on in the talent marketplace. Both in your market sector, your specific customer base, what is happening there. Your competitor base and also what is going on locally to you. So we have access because our group activities with many different channels that this report is starting to provide some very factual and useful information as people start to look at what they need to do with their people and as practices will change.
So I think that's pretty much where we are with everything. As I say right now there will be and if I can ask you to just stay on if there are any final questions throw those in. I would just like to thank the panel, thank you very much for your time. It has been very informative, certainly we have got some good knowledge but it is always useful to have experts around who can tell you what is going on. So I will draw to a close where we are with the session and then I think the final piece will be to just have the online survey which everybody will take, if you will do please. It will take literally just a few seconds and then we will be sending out the slides within the next 24 hours, so everybody will receive those. So thank you again panel and we look forward to the next events where I will be moving on to additional topics which will support everybody.
So thank you. Oh, one question, sorry somebody has thrown a question in right at the end. Yes, there will be some from our secure restart programme we have some guidance and advice and that is going to be worked with various legal elements so we will be able to share that with you. If you are interested in receiving some more information either email myself directly or use the solutions email address that was on the last slide there and then I will be able to respond back to you. So thank you for that.
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