Information Commissioner’s Office fines nursing home £15,000 for failing to keep personal information secure

The Information Commissioner’s Office (ICO) has fined a nursing home £15,000 for failing to keep personal information secure.

The Data Protection Act 1998 requires organisations to have measures in place to keep any personal information which they hold secure.  The breach occurred when a member of staff took an unencrypted work laptop home, which was stolen overnight during a burglary.  The laptop contained sensitive personal information relating to 46 members of staff, including reasons for sickness absence and information about disciplinary issues.  The laptop also held details about 29 residents including their dates of birth, mental and physical health and “do not resuscitate” status.

An investigation by the ICO found widespread systematic failings in data protection at the nursing home at the time of the breach.   The ICO discovered that the home didn’t have any policies in place regarding the use of encryption, homeworking and the storage of mobile devices, or provide adequate training for staff on data protection issues.

The level of the fine reflects the fact that the nursing home was a small business.  It is likely that a larger organisation would receive a much heavier fine in similar circumstances.

 Tribunal decides voluntary overtime should have been included in holiday pay calculations

In the recent case of Brettle v Dudley Metropolitan Borough Council an Employment Tribunal has held that voluntary overtime and other payments associated with rotas worked voluntarily should have been included when calculating statutory holiday pay.

The Working Time Directive is implemented in the UK by the Working Time Regulations 1998 (WTR).  The WTR provides workers with 5.6 weeks paid holiday each year.  Under the WTR, workers are entitled to be paid holiday pay at the rate of “a week’s pay” for each week of holiday.

Until relatively recently, it was widely understood that “a week’s pay” should be based on employees’ basic pay and that any additional payments, such as overtime payments and commission, did not have to be included when calculating a week’s pay.  However, this changed following the ECJ’s landmark 2011 ruling in Williams and others v British Airways plc, in which the ECJ ruled that holiday pay calculations should include all remuneration which is “intrinsically linked to the performance of the tasks which the employee is required to carry out under his contract of employment”.

In the subsequent case of Bear Scotland Ltd v Fulton, the Employment Appeals Tribunal decided that “non-guaranteed overtime” (i.e. overtime which the employee is obliged to do if asked) should also be included in holiday pay calculations. However, although it seems likely that voluntary overtime should also be included, the position on voluntary overtime is not completely clear.

The Brettle case concerned 56 employees who brought claims for unlawful deduction from wages on the basis that their holiday pay had not been paid at the correct rate.  The Claimants claimed that their holiday pay should have included an amount in respect of voluntary overtime, voluntary standby allowances and voluntary call-out payments.

The Tribunal upheld the claims, on the basis that although out of hours standby, call-out allowances and overtime was entirely voluntary, the additional payments were intrinsically linked to the work the employees did. The Tribunal took the view that failing to include these payments in holiday pay in circumstances where a worker receives them consistently and regularly might deter workers from taking holiday.  However, the Tribunal held that voluntary overtime payments should not be included in holiday pay calculations for one employee who did overtime very rarely.

The Tribunal is due to make a further ruling on compensation and it will be interesting to see how the employees’ compensation is calculated.

As this is only an Employment Tribunal decision, it is not binding on other Tribunals, however it is a good illustration of the direction this area of law is heading in.  However, as most of the legislation and case law surrounding holidays derives from EU law, the UK position could change as a result of Brexit.

Protecting pay of disabled employee can be a reasonable adjustment

The EAT has held that it would have been a reasonable adjustment to continue employing a disabled employee in a more junior role while continuing to pay him at his original rate of pay.

Mr Powell worked for G4S Cash Solutions (UK) Ltd (G4S) as a single-line maintenance engineer and maintained G4S’s ATM machines.  He had employed by the company since 1997 in various roles, however he suffered from back pain and by 2012 he was no longer fit for jobs which involved heavy lifting, or work in confined spaces.

After a period of sickness absence, Mr Powell returned to work as a “key runner”, a role which involved driving from the company’s depot to various locations to deliver materials to engineers.  In 2013, G4S informed Mr Powell that the key runner role was not permanent and invited him to look through a list of alternative vacancies. He was informed that if he couldn’t find anything suitable, he would be dismissed on the grounds of ill health.

When Mr Powell lodged a grievance, G4S decided to make the key runner role permanent, but with a 10% reduction in pay to reflect the fact that the role did not require engineering skills. Mr Powell objected to this and was dismissed.  Mr Powell lodged various claims against G4S, including a claim that it had failed to make reasonable adjustments.

The EAT held that continuing to employ Mr Powell as a key runner on his original rate of pay would have been a reasonable adjustment and G4S had discriminated against when it failed to do this.  The EAT took the view that there is no reason why pay protection cannot be a reasonable adjustment, as it just is another form of cost for an employer, analogous to the cost of providing extra training or support.

The effect of this decision is that when considering what adjustments should be made for a disabled employee, the possibly of protecting the employee’s original rate of pay following a change in the employee’s role should be considered.  As in every case, the reasonableness of any potential adjustments must be assessed on a case-by-case basis, taking into account a range of factors, including the cost of making the adjustment and the resources available to the employer.  As G4S is a large organisation with substantial resources, the cost of continuing to pay Mr Powell at his original rate of pay was affordable.

For more information, please contact Jayne Harrison or Emma Tegerdine