Legal Q & A

This week’s legal questions and answers

Q What do the Employment Rights Act 1996 (ERA) and Employment Act 2002
(EA) mean for employers in relation to grievance procedures and employees’

A Under section 3(1) ERA 1996, employees’ contracts (or statements of
written particulars) must state how employees may raise a grievance relating to
their employment and to whom. Any further steps in the grievance procedure must
be explained, or the employee should be referred to a reasonably accessible
document explaining this.

Employers are not obliged to set up formal grievance procedures, but a
well-written procedure can help prevent unfair dismissal or discrimination
claims as well as being good employee relations practice.

In addition, the EA sets out a statutory procedure for grievances, including
requiring an employer to set up a grievance meeting and to provide a written
response to an employee’s complaint. These are a minimum requirement but it is
always advisable for employers to have clear and full procedures to minimise
the risk of claims.

Q When recruiting job applicants, we inform them that we will hold their
personal details (on CVs) for one year. Is there any law against us contacting
them and asking if we may retain their details for a further year? Of course,
at this stage, they can also ask us to remove their details.

A The Data Protection Act 1998 (DPA) governs the use of personal data
when obtaining and using candidates’ data in the job selection process. The DPA
provides generally that personal data should be accurate and, where necessary,
kept up-to-date and should not be kept for longer than is necessary.

The first point is, therefore, to ensure you have sound business reasons for
retaining the details for the initial one-year period. If you are, for example,
retaining the records for the purposes of a recruitment business, then such a
period may be reasonable.

It is safest to ensure that you also obtain candidates’ written consent to
the retention of their data and, indeed, explicit consent is required if these
include "sensitive personal data" – for example, data relating to
their racial or ethnic origin, religious or other beliefs, physical or mental
health or trade union membership.

If you want to extend the period for which you retain any records, again you
will need to have a sound reason for doing so. There is nothing to stop you
from seeking candidates’ permission for such an extension but you should, at
this stage, state to candidates why you wish to retain the details and give
them the option of having their data removed or amended.

Q I read with interest the Letter of the Law in Personnel Today (24
September) on the proposed Temporary Workers Directive. I work in the
construction industry and a large number of the workforce are self-employed or
sub-contractors. What will be the impact of the proposed directive on the
employers of these workers?

A The proposed directive is aimed at preventing discrimination
between temporary agency workers and other employees doing similar work,
thereby offering temporary workers a level of protection and certainty similar
to full-time or permanent staff (see page 3). In its current form, the proposed
directive only encompasses the rights of workers employed through an agency. In
other words, self-employed workers and sub-contractors may not fall strictly
within its ambit, although this of course depends on how the UK implements the
proposed legislation.

However, if the sub-contractors are employed through an agency, the employer
may, among others, have to provide that they are not discriminated against in
employment conditions and have access to permanent employment and

By Sarah Keeble, partner in the employment department at Olswang

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