Information Commission guidance

Further to the decision in Durant v Financial Services Ltd (LELR 86, Feb 2004), the Information Commissioner has produced guidance on two main points. It covers what is meant by 'personal data' and clarifies when manual files are covered by the Data Protection Act 1998.

When an individual's name is identified in a file, it will probably constitute 'personal data' and therefore be covered by the Act if there is also other information about him or her in it. The important point is that the information should be linked to a named person, and that other information about that person exists.

To decide whether a manual file is covered by the Act, the crucial thing is that it must be organised into a 'relevant filing system'. That means that the system has to be structured using names of individuals as file names, and allows the person trying to extract the person-al data to do so without having to leaf through the whole file.
That means that personnel files categorised by individuals' names are likely to fall within the meaning of a 'relevant filing system'.

Dismissal causes injury to feelings

The Court of Appeal has decided - in Dunnachie v Kingston - that the compensatory award in an unfair dismissal case can include an element for injury to feelings.

This overturns the law in this area which has always excluded non-economic loss, although in Johnson v Unisys Ltd, the House of Lords had said that such awards could be made.

The Court of Appeal has now clarified that this comment was not part of the judgement and was therefore not binding on other courts. It has also made clear that tribunals should only compensate an employee for real injury to his or her self-respect.

The case may, however, be appealed to the House of Lords. In the meantime, the advice from the court is that 'tribunals should manage, list and decide cases in the knowledge that the last word has not been said, but is going to be said in the foreseeable future, on this topic'.

Justifying disability discrimination

In Collins v Royal National Theatre Board, Mr Collins claimed unfair dismissal and disability discrimination after he had injured his thumb in an accident at work and was subsequently dismissed. The tribunal decided that the dismissal was both discriminatory and unfair, but the Royal Theatre successfully challenged both conclusions in the appeal tribunal.

The Court of Appeal was then asked to address a 'new and sharp question of discrimination law: can an employer's failure to make adjustments to accommodate a disabled employee be unreasonable but justified?' And the answer, in essence, is that it can't.

Some of the difficulty facing the court stemmed from the fact that the Disability Discrimination Act (DDA) 1995 currently sets out two different justification defences. Both use more or less the same words, but one is for less favourable treatment and the other for failure to make reasonable adjustments.

Although the justification defence in adjustment cases is being removed from the DDA on 1 October 2004, the court still had to grapple with the existence of both sections in this case. And that proved problematic.

We know from other cases that the justification defence for less favourable treatment is relatively easy for employers to make out. But what about justification in adjustment cases?

The issue facing the court concerned the link between reasonableness in an adjustment case and justification. Basically, whether employers can justify a failure to accommodate their disabled employee using a ground that the tribunal has already rejected as unreasonable?

The Court decided that they can't. So an employer can't justify a breach of section 6 (failure to make reasonable adjustments) by relying on a reason that has, in fact, contributed to that breach. The result is that the court has established that the threshold for justifying a breach is much higher when employers fail to make reasonable adjustments, than when they treat an individual less favourably.

Pensions Bill

The Government recently published its Pensions Bill, which contains measures on insolvency protection for employees and protection of their rights following a TUPE transfer.

In the first instance, it makes provision for the introduction of a Pension Protection Fund which will guarantee payment of pension benefits to members of the final salary scheme in the event of insolvency.

The fund will be financed by a levy calculated on two grounds. These include 'scheme factors' such as the number of members and the balance between active and retired members; and 'risk factors' linked to the level of underfunding in the particular scheme.

The Bill also sets out the conditions under which employees involved in TUPE transfers are eligible for protection. These are:

that the employee is, or is eligible to be, an active member of an occupational pension scheme run by the transferor, and
that where the scheme provides money purchase benefits, the transferor is required to make (or has made) contributions to it for the employee.

Where those conditions apply, transferees also have responsibilities in that they have to ensure that the employee is (or is eligible to be) a member of a scheme for which the transferee is the employer.

If it's a money-purchase scheme, the transferee has to make contributions, which must match those of the employee up to six per cent. If it's not a money-purchase scheme, the transferee has to guarantee that it satisfies a standard set in the Pensions Scheme Act 1993, or some alternative that will be set out in regulations.

Employment agencies regulations

The Department of Trade and Industry has just produced useful guidance explaining new regulations covering employment agencies, which come into effect on 1 April. The rules - Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319) - govern the conduct of the industry and set up a framework for minimum standards.

The guidance explains the general duty of agencies to comply with relevant legislation - such as equal pay, health and safety, immigration, national minimum wage, working time and trade union membership. It also gives examples of possible situations that may arise when using an employment agency, as well as some solutions.

To view the guidance, go to www.dti.gov.uk.

Trade union modernisation fund

An amendment has been tabled to the Employment Relations Bill concerning the provision of a new funding scheme for trade unions. The new clause would give the Trade and Industry Secretary powers to make funds available to trade unions to modernise the way they operate.

The scheme - worth up to £10 million in total - could help trade union representatives promote the development of 'high performance workplaces'; review internal union structures to improve management systems; and help unions make greater use of the internet.

If the amendment gets parliamentary approval, the government will issue a consultation document of the draft rules for the fund in due course.

ACAS guidance on bullying and harassment

Acas, the Advisory, Conciliation and Arbitration Service, has just updated its two guides on bullying and harassment at work - one for employees and the other for employers. Both give a short guide to the law, along with examples of behaviour that might be considered to be bullying and harassment.