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Employment Law

Employment law is constantly changing but our team of expert lawyers based in Southampton and Winchester are here to help your business to proactively manage your employment issues. We provide commercially orientated practical advice and pragmatic solutions which are tailored to the needs and circumstances of your business.

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Key employment law services

Our team of employment lawyers can advise you on all employment law related issues including:

Flexible fees

We understand that employers can perceive the cost of instructing a solicitor to be daunting, particularly if faced with the cost of defending an Employment Tribunal claim. To assist our clients, we have developed flexible fee arrangements to give our clients access to instant legal advice whilst offering financial peace of mind regarding their legal spend. We can provide:

  • retainer arrangements with or without insurance backing;
  • capped fee Tribunal representation; and
  • fixed fees for drafting and reviewing documents.

Employment law work examples:

  •  Advising on the furlough scheme and the changing rules relating to this scheme.
  •  Advising on numerous redundancy situations including collective redundancies.
  •  Advising employees in mass-settlement agreement exercises.
  • Representing clients in respect of a number of substantial Employment Tribunal cases, including:
    • TUPE claim for an employer where 15 employees brought an action concerning the application of the TUPE Regulations;
    •  Whistleblowing claims in the Employment Tribunal for employers and employees; and
    • Discrimination claims;
  • Obtaining injunctions and undertakings in restrictive covenant and confidentiality cases.
  •  Advising on director exits where the issues involved are often complex and high value, involving both employment and shareholder issues.
  • Representing a client on a national minimum wage case before the Court of Appeal.
  • Advising on insolvency situations for employers.

Training

We run regular HR courses at our offices and external venues over the year designed for HR professionals and those responsible for HR within their organisation. We also run webinars on these topics. Keep an eye on the Events section of our website to see upcoming courses.

In-House Counsel

Our team of experienced lawyers is well-equipped to support you in various ways. Whether you require advice on a specific issue, additional resources due to capacity constraints, or a second opinion, we are here to help. Explore our legal counsel page for more information and details on our schedule of seminars, specifically designed for in-house counsel.

How we work with you

Whilst based in the South of England, Paris Smith acts for businesses and families throughout the UK. Technology has enabled us to provide a high level of service to our clients whether they are local to our offices or not. Our advice can be given in many ways:

  • Over the telephone
  • Via video conferencing
  • In face to face meetings

We will talk through how you would like to be contacted and the best ways for us to meet in our early conversations with you.

Get in touch to speak with an expert.

Chambers Alternative 500

Introducing your key contacts

Clive Dobbin

Partner and Head of Employment, Southampton

David Roath

Partner – Employment Team, Winchester

How we’ve helped our clients

“I received excellent service and advice from Tabytha and Charlotte, especially given the time constraints of the issue that we were looking to resolve. Communication was prompt and easily understood and we ultimately achieved the desired outcome.”

Oat Services Ltd – Employment & Immigration Law Advice

“In recent months I have the pleasure to be assisted by a good number of the Paris Smith legal teams on a range of matters including sale of business, IPR and employment matters. Referring to the most recent experience with a company employment matter, I would commend Charlotte and Tabytha most highly for the service they provided to me. They give clear information so one knows what the legal position is and support that with a pragmatic commercial approach to help resolve the real life situation. I felt much more comfortable after speaking with the Paris Smith Employment team and would like them to be our preferred partner in relation to these legal matters.”

Sandra Walmsley, Finance Director

Aspect Ecology Ltd

“Paris Smith always provide us with excellent service, we use them for their employment law expertise and they have guided us through some complex situations with various employee issues as well as some major restructures. ”

HR Manager

Formaplex Ltd

“I have been a client of Paris Smith’s Employment law department for several years, including for the resolution of a challenging worker-related dispute. The team has been superb throughout, far exceeding my expectations in terms of their professionalism, proactiveness, pragmatism and generous spirit, often going above and beyond in their service delivery to bring the matter to a far better than hoped for conclusion. At a personal level, everyone I dealt with was delightful too. Paris Smith will certainly remain by ‘go to’ law firm for employment and other legal advice!”

Dr Katja LH Samuel, Chief Executive Officer

Global Security and Disaster Management

“ Paris Smith provides outstanding service. Our experience is continually a high positive one with concise, relevant advice given with patience and clarity. From assistance and training in updating policies and procedures to advising a college on their obligations both in relation to individuals and more widely, in regards to the Public Sector Equality Duty, we have found Paris Smith to be always diligent, thorough and very supportive.”

Totton College

“Paris Smith is a fantastic company with departments for all areas. Not only are they a fast responsive team they are good at what they do and are easy to communicate with. They have helped review all of my employment documents across three companies, tying them all up together with the correct documentation and making it easy for me to move forwards with minor editing. They were sympathetic to my new company as this only had start up funds and so I was working to a budget!. I found them willing to help me, and were interest in my business and projects. Really trying to understand and suggest what was best for me. I am continuing to work my way round the departments so all areas of business meet current legislation. I look forward to future business.”

Anthony Hughes, Director

Window Repair Specialists

“Referees say “There is expertise in all areas. They are quick to respond at all hours and their advice is spot on!”. Another says “hey are the leading Solent-based law firm. Strong roots in local business have been fostered by years of high-quality work. They are expert but also have a good personal touch. A joy to work with”, whilst another says “It employs very well-known and respected employment lawyers who have been practicing in Southampton for many years. They offer an excellent service and lend pragmatism and robust advice to all scenarios.””

Legal 500 2024 Edition

“Referees say “They always impress with their breadth of knowledge” and “They are very commercially aware.””

Chambers & Partners 2023 – Referee Comments

Chambers Top Ranked Logo 2024

Chambers and Partners Legal Directory 2024 – Band 1

What the team is known for

Paris Smith is a respected employment team, noted for its strong reputation in the local market, which acts for both employees and employers and has significant experience in acting on both sides of senior-level exits. The firm represents clients in employment tribunals and restrictive covenant actions as well as aiding companies with employment training programmes. The team regularly advises clients from the education and transport sectors.

Strengths

“Their advice has always been concise and effective.”

“Paris Smith have been a great help to us on complex matters.”

Notable Practitioners

Clive Dobbin – Band 1

Clive Dobbin leads the Paris Smith employment practice. He regularly advises on senior-level exits, contractual issues and TUPE matters.

“Clive is always very thoroughly prepared. He’s a good person to have on your team.”

“Clive is very strong on TUPE issues.”

Claire Merritt

Claire Merritt is sought out by clients for her ability to advise on both contentious and non-contentious matters. She regularly works with clients on defence strategies in the Employment Tribunal as well as offering ongoing training.

“Claire is a real details person. She’s careful and conscious of the client’s needs.”

“Claire is excellent to work with. When dealing with a complex employment situation we are always pleased to have her clear, concise advice.”

David Roath – Band 1


Legal 500 Top Tier logo

Legal 500 Directory 2024 Edition

Paris Smith LLP fields a team of ‘very well-known and respected lawyers’ who are well placed to handle restrictive covenant actions, employment tribunal cases, and senior level exits. The group demonstrates considerable strength in the transport, recruitment, and education sectors, with Southampton-based practice head Clive Dobbin bringing extensive experience in complex discrimination and TUPE claims to the practice. David Roath is a specialist in business protection and director exits, while Claire Merritt routinely supports clients from the education industry with contentious issues, including restrictive covenant disputes in the High Court.

What clients say:

‘David Roath is for me the standout practitioner in the firm. He is available most of the time and on short notice, gives clear and practical advice, is totally professional, but also approachable and helpful.’

‘There is expertise in all areas. They are quick to respond at all hours and their advice is spot on!’

‘Clive Dobbin, he is top drawer, so good on all aspects of employment law.’

‘They are the leading Solent-based law firm. Strong roots in local business have been fostered by years of high-quality work. They are expert but also have a good personal touch. A joy to work with.’

‘David Roath – calm under pressure, unflappable, excellent legal knowledge and tactical nous, great to work with.’

‘Clive Dobbin – a star individual, great with clients, easy to work with, strong legal knowledge and always has a great grasp of the detail of a case, strong commercial sense.

‘It employs very well-known and respected employment lawyers who have been practicing in Southampton for many years. They offer an excellent service and lend pragmatism and robust advice to all scenarios.’

‘Clive Dobbin is always accessible, shows great knowledge and I trust him implicitly to give me sound advice.

Events

IR35 Training
12
Jun

IR35 Training

Clock

09:00 – 11:30 GMT
Wed 12th Jun 2024

Location

Axis Conference Centre

Price

From £90.00

Apprenticeships Training
17
Jul

Apprenticeships Training

Clock

09:00 – 11:30 GMT
Wed 17th Jul 2024

Location

Axis Conference Centre

Price

From £90.00

Directors’ Duties Training
18
Sep

Directors’ Duties Training

Clock

10:00 – 12:00 GMT
Wed 18th Sep 2024

Location

Online

Price

From £90.00

Thinking of becoming a sponsor – Training
25
Sep

Thinking of becoming a sponsor – Training

Clock

10:00 – 11:00 GMT
Wed 25th Sep 2024

Location

Online

Price

From £45.00

Menopause for Managers – Training
30
Oct

Menopause for Managers – Training

Clock

10:00 – 11:00 GMT
Wed 30th Oct 2024

Location

Online

Price

From £45.00

Mock Employment Tribunal – Training
20
Nov

Mock Employment Tribunal – Training

Clock

09:30 – 14:00 GMT
Wed 20th Nov 2024

Location

Axis Conference Centre

Price

From £90.00

Podcast

Andrew Willshire and Adam Wheal | 27th February 2023

Disability Discrimination Podcast

LISTEN TRANSCRIPT

Andrew Willshire and Adam Wheal | 27th February 2023

Disability Discrimination Podcast

The Disability Discrimination Podcast is your essential resource for staying informed on the latest issues in disability discrimination in the workplace. On this podcast, legal experts Andrew Willshire and Adam Wheal discuss the unique challenges faced by disabled individuals, while providing practical advice on diversity, inclusion, and accessibility in the workplace.

Don’t miss out on this valuable platform for professionals seeking to create more equitable workplaces. Tune in now to stay up-to-date on disability discrimination issues in the workplace!

LISTEN

Sarah Hayes and Tabytha Cunningham | 28th September 2022

Menopause in the workplace

LISTEN TRANSCRIPT

Sarah Hayes and Tabytha Cunningham | 28th September 2022

Menopause in the workplace

In today’s episode, we’ll be discussing the impact of menopause on employees, and some of the steps that employers can take to support staff experiencing menopausal symptoms.

01:21: To start with, we’ll hear from Sarah Hayes, an employment lawyer at Paris Smith LLP. Sarah has extensive experience in advising employers on a range of issues relating to menopause, and she offers some great advice on how to support employees going through this difficult time.

09:00: We’ll also be talking to Tabytha Cunningham, who provides some great tips on how employers can make reasonable adjustments to help staff manage their symptoms.

13:53: Finally, we’ll ask Sarah about the usefulness of introducing a menopause policy, and she offers some great advice on what this could include.

So, whether you’re an employer looking to support your staff better through menopause, or an employee who’s experiencing symptoms and looking for advice, you won’t want to miss this episode.

Thank you for listening.

References and further reading

https://www.acas.org.uk/menopause-at-work
https://parissmith.co.uk/blog/menopause-and-employment-law-is-it-a-disability-and-what-steps-can-employers-take/

LISTEN

Tabytha Cunningham and Charlotte Farrell | 3rd February 2022

Hybrid and Remote Working: Practical Implications for Employers

LISTEN TRANSCRIPT

Tabytha Cunningham and Charlotte Farrell | 3rd February 2022

Hybrid and Remote Working: Practical Implications for Employers

Remote and hybrid working has now become the norm for many businesses. Not only can there be various benefits to this flexibility, but more and more prospective employees look for this when applying for roles.

Employers who have embraced remote and hybrid working however need to ensure they are doing this compliantly; it’s crucial to have the right policies in place and employment contracts.

Employment experts Tabytha Cunningham and Charlotte Farrell discuss in our latest episode.

Find our more: parissmith.co.uk/your-business/employment-law/

Download our guide to hybrid working: parissmith.co.uk/wp-content/uploa…brid-working.pdf

00:45
Why should employers formalise their remote working practices?
Employers need to think about how they can support employees who are now permanently working from home.

02:33
What steps do employers need to take to formalise these new processes? Charlotte and Tabytha talk about the importance of having a hybrid working policy and what this should include.

04:35
Key practical considerations – our experts cover health and safety, risk assessments and data protection obligations in relation to hybrid and remote workers.

07:15
How employers can best support their remote employees and the importance of using appraisal procedures effectively.

09:35
Issues with international employees. If employers are happy with having staff in other locations, what practically do they need to think about?

LISTEN

Claire Merritt and Tabytha Cunningham | 30th November 2021

Recruitment & Retention Part 2: Long Term Employee Retention

LISTEN TRANSCRIPT

Claire Merritt and Tabytha Cunningham | 30th November 2021

Recruitment & Retention Part 2: Long Term Employee Retention

Many organisations are struggling with retaining talent, with some offering high salaries in order to attract and retain key people. But does this keep good staff in the long term? Employment experts Tabytha Cunningham and Claire Merritt explore the key factors that affect employee retention, and how you can keep existing staff happy and productive.

00:50 Claire talks through the importance of good and frequent communication in your business at all levels.

01:57 Training and development is key. Businesses change all the time and people are looking for their next challenge.

03:17 Managing staff after the pandemic and new skills. How can we effectively manage remote teams and keep them engaged?

05:43 Managing wellbeing and making employees feel valued. What tools are available?

06:55 Flexible working, work life balance and making sure your employees don’t feel overwhelmed.

09:12 How do you advertise your roles and do you mention remote working?

09:50 Managing mental health at work. Do you have training in place to ensure managers can help people properly? This can be key in employee retention.

12:09 The importance of recognition. What motivates people is different for each individual but it is always important to show employees they are valued.

13:44 How should you reward employees?

16:19 Career progression and ensuring employees feel they are heading in the right direction.

LISTEN

Claire Merritt and Tabytha Cunningham | 30th November 2021

Recruitment & Retention Part 1: Recruitment Best Practice

LISTEN TRANSCRIPT

Claire Merritt and Tabytha Cunningham | 30th November 2021

Recruitment & Retention Part 1: Recruitment Best Practice

Welcome to the first of our two-part employee recruitment and retention podcast. Lots of business are struggling to recruit and retain the right people for their organisation. Employment law experts Claire Merritt and Tabytha Cunningham explain how getting your processes right can really help.

01:41 What does best practice look like? Claire examines how contracts of employment can be used as a key recruitment tool.

03:51 Going back to basics and focussing on the requirements of the role.

04:30 Your job adverts – be mindful of discrimination claims be careful with language

05:20 Ensuing you have an objective selection and interview process.

06:40 Risks of getting it wrong – the pressure on wage inflation, the gender pay gap.

09:03 A move towards openness – disclosing salaries and meeting candidate expectations.

10:22 Best practice for candidate onboarding and offering the best support.

12:00 Probationary periods and using these correctly.

LISTEN

Clive Dobbin, David Roath and Tabytha Cunningham | 9th September 2021

The Employment Tribunal: What happens on the day – Part 2

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Clive Dobbin, David Roath and Tabytha Cunningham | 9th September 2021

The Employment Tribunal: What happens on the day – Part 2

Welcome to part two of our two-part series on Employment Tribunals. In this podcast Employment experts Clive Dobbin, David Roath and Tabytha Cunningham answer your key questions about what happens on the day of a Tribunal. They chat through everything from how to give a witness statement to what to wear.

For more information on how our team can help you: https://parissmith.co.uk/your-business/employment-law/tribunal-representation/

Show notes
00:50
What is the set up for a typical Employment hearing?
David talks about how processes been pushed forward by the pandemic and what are the options for a virtual hearing. Do you get a choice which option you can have?

02:50
What should you know before the hearing to prepare? Tabytha explains what technology you should test if you are remote and some tips for making this process seamless.
If you have an in-person hearing, what happens when you arrive and who will be there? Be prepared for lots of waiting around.

04:25
What preliminary matters will there be on the day? Tabytha talks through how this works and what is common.

05:10
Who decides the outcome of a case? This depends totally on the claim. Simple cases like unfair dismissal will be heard by one Judge In more complex cases like discrimination, there will be a panel of three people. Our experts explain how to they work together to decide and who has the final say.

07:35
Giving evidence – how is this done and how should you address the Judge?
Our experts also explain how are different people are addressed and the common terms you might hear such as ‘claimant’, what you should wear, what to bring with you, where to stand when giving evidence and what swearing an oath means in practice.

09:45
What happens at cross examination? This is when the other side will ask questions about your witness statement. Our experts give some tips about what to expect and how to answer.

11:40
Our Employment team give top tips for preparing to be a witness and discuss the importance of the witness statements.
The key is that you should remind yourself what is said in the statement before the hearing as they often written a long time before the hearing.

13:40
Submitting additional documents – what is the process when you want to submit extra information?

15:35
Cross examination can be nerve-wracking. Our team give tips for giving evidence and cross examination, and cover the importance of preparation and overcoming nerves

20:35
Coming to a decision – what is the process and how long does this take?

21:50
What happens if you are unhappy with the decision and what are the grounds for appeal?

LISTEN

13th July 2021

The Employment Tribunal process – What you need to know – Part 1

LISTEN TRANSCRIPT

13th July 2021

The Employment Tribunal process – What you need to know – Part 1

Welcome to the first episode of our two-part series on employment tribunals. In this podcast Employment experts Clive Dobbin, Claire Merritt and Andrew Willshire cover the key steps in presenting a tribunal claim, and what employers should do in response to a claim.

Show notes
01:10
What is ACAS early consiliation and what do you need to do? We chat through how this process can help you address issues early and how ACAS can mediate.
More information: www.acas.org.uk/early-conciliation
03:50
What is our advice for employers about ACAS early consiliation? Should you engage and what are the benefits?
05:25
Are ACAS overburdened and what are the implications?
06:30
We cover how an employee presents a claim to the tribunal and what documents are required.
Access an ET1 form: www.gov.uk/government/publicat…t-tribunal-form-et1
07:55
We discuss what makes a claim acceptable
08:30
How much detail should an employee include in the claim? They must be concise and clear.
09:10
Should you attach documents in your initial claim submission?
09:50
What happens when you receive a claim as an employer? There are strict deadlines in this process, so explain the importance of this.
11:05
Our experts guide you through submitting an ET3 form, verifying the information that the employee has submitted, and when you have your opportunity to submit your version of numbers, dates etc.
11:50
When should you be instructing a solicitor and information gathering and submitting your response?

13:10
So the claim and response have been submitted – what happens now? We also discuss when a preliminary hearing is necessary.
14:22
Who attends a preliminary hearing?
15:00
What evidence do you need to defend a claim? We also discuss the process of ‘disclosure’ – what is this and how long does it take?
17:50
Our experts talk through the role of witness evidence
18:40
What should you do if you feel there are documents missing in the disclosure?
19:55
Employment tribunal costs – can you reclaim costs if you are successful in defending your claim?
22:00
Reaching a settlement – our lawyers answer key questions such as what options are there for settlement once a claim has been presented? Are settlements always done through ACAS?
25:05
The role of mediation – how does it work through the employment tribunal process, and how successful is judicial mediation?
25:45
How has COVID-19 affected the employment tribunal process? We know the employment tribunal is struggling to cope at the moment, so how does this affect when a final hearing can happen?

LISTEN

Claire Merritt and Tabytha Cunningham | 21st May 2021

Performance management process: getting it right in your business

LISTEN TRANSCRIPT

Claire Merritt and Tabytha Cunningham | 21st May 2021

Performance management process: getting it right in your business

In our latest employment law podcast, where employment law experts Claire Merritt and Tabytha Cunningham dive into the complex topic of performance management. They explore and advise on how to manage poor performance, why its so important, the key components of a good performance management process and how to address concerns.

Show notes:

00:45
Why is performance management important? Good performance management leads to better productivity, open communication and allows managers to identify, and more importantly resolve issues.

02:20
How has performance management been affected by the pandemic? Good performance management is difficult at the best of times, and the pandemic had led many businesses to be in survival mode which means performance management slips off the radar.

05:05
What are the key components of performance management processes? The important things to remember are to be continuous, and have structure.

09:00
Claire and Tabytha discuss the importance of tailoring targets and performance criteria for individuals.

10:50
How do you set up a performance management process? Its not plain sailing! There is no ‘one size fits all’ but employers should focus on making it realistic, and investing in managers is key.

14:10
Claire and Tabytha discuss how important it is to set goals and targets that are appropriate.

15:15
How to use your system to manage those poorly performing – remember the aim is always improvement, not dismissal.

17:00
How to identify the reasons for poor performance. This could be anything from training requirements to personal issues. Managing this is an important part of good performance management.

18:30
Claire and Tabytha discuss how formal and informal performance management processes can be used together, and how they can serve different purposes.

19:00
What happens when an employee’s performance does not improve, despite a robust procedure?

23:35
Claire and Tabytha tackle a common question: how long do you set targets for?

LISTEN

Claire Merritt and Tabytha Cunningham | 9th April 2021

Managing Mental Health at Work

LISTEN TRANSCRIPT

Claire Merritt and Tabytha Cunningham | 9th April 2021

Managing Mental Health at Work

Employment experts Tabytha Cunningham and Claire Merritt answer the common questions managers have managing mental health at work. The pandemic has made it even more difficult to spot the signs of poor mental health, so how can we make sure we are being proactive as employers?

01:55 What do we mean by managing mental ill health at work?

03:56 When are employers liable for work related stress? What are the risk factors and where do employers stand?

07:00 What proactive steps can managers take to improve mental health of staff?

11:03 What does it mean to be a mental health first aider?

12:05 When is poor mental health classed as a disability?

16:26 If someone is disabled, what adjustments should you make?

18:42 What should potential triggers or warning signs should managers look out for?

24:08 What should a manager do when an employee discloses a mental health problem?

26:20 How best to manage poor performance related to mental ill health

Resources
Managing and supporting mental health at work with Mind: https://www.mind.org.uk/workplace/mental-health-at-work/taking-care-of-your-staff/useful-resources/

LISTEN

30th August 2019

A Guide To Settlement Agreements

LISTEN TRANSCRIPT

30th August 2019

A Guide To Settlement Agreements

Employment Solicitor Sarah Hayes takes us through a guide to settlement agreements. Why are they beneficial? What should you need to know and what are the practical steps that need to be taken for them to be legally binding?

Show notes
00:28 What is a settlement agreement? Sarah defines what it means
00:48 What is the purpose of a settlement agreement and what will include
01:15 There are various benefits of having a settlement agreement – Sarah talks through what these are
02:00 How long does it take to agree the terms of a settlement agreement?
02:40 It is important to see a solicitor if you are issued with a settlement agreement – Sarah talks about how this works in practice
04:06 What happens if you want to negotiate the terms of your agreement and do you have to sign the agreement? Sarah explains in detail and what the implications are for you.
04:45 How do you know if you’re getting a fair deal?
05:30 What is the typical time frame for payments being made?

LISTEN

Videos

What is the menopause?

TRANSCRIPT

Sarah Hayes | 13th November 2023

What is the menopause?

00:00.0 Hi, my name is Sarah Hayes, and I’m a solicitor in the employment team at Paris Smith. Whilst it isn’t a new topic by any means, the menopause has been rapidly gaining momentum within employment law and within the wider media as well. A quarter of women have experienced debilitating symptoms, and over 80 percent have experienced it having an effect on them within the workplace.

00:26.1 It’s a topic which has also gained a lot of traction right up to government level, where there’s been lots of debate and recent consultation around the menopause.

00:39.5 Well, the menopause is a natural stage of life which affects roughly half the population. It usually occurs in women aged between 45 to 55 years old, although it can start earlier than this and it can also start later as well.

What legal protection do employees have for the menopause?

TRANSCRIPT

Sarah Hayes | 13th November 2023

What legal protection do employees have for the menopause?

00:00.0 So all employees have protection under the Equality Act, regardless of how long they’ve been employed for, and this includes certain protected characteristics. Now the menopause itself is not recognised as a protected characteristic, but age, sex and disability are types of protected characteristic which are all going to be really relevant here to consider. Now, the menopause is not recognised automatically as a deemed disability.

00:31.4 Disability has a specific legal definition which a tribunal would need to look at, and generally there we’re going to need to look at how long the symptoms have lasted. Or are likely to last and what the day-to-day impact is there to an individual as well. So there’re lots of things there that will need to be considered, and employers will often need to get some medical input here to help them understand this. So they may need to speak to occupational health, or they may need to speak to a GP in order to understand those symptoms and what the impact there is on the individual.

What reasonable adjustments should be made by employers with regards to menopause in the workplace?

TRANSCRIPT

Sarah Hayes | 13th November 2023

What reasonable adjustments should be made by employers with regards to menopause in the workplace?

00:00.0 So if an employee is disabled, an employer has a legal obligation there to make reasonable adjustments. And the idea is there that the reasonable adjustments are going to try and help to alleviate some of those disadvantages that that individual is suffering as a consequence of their disability.

00:20.5 Now there’s lots of different examples of what a reasonable adjustment will be, and that will really depend on the individual themselves and what they’re experiencing. Sometimes we’re looking at practical adjustments, so in terms of their physical working environment, we might be looking at the temperature, ventilation, other types of practical changes.

00:40.6 So employers are legally also responsible for the health and safety of their workforce and their employees and that includes individuals that are working from home as well. So very broadly they should be carrying out risk assessments on a regular basis so that they can monitor that and they can keep in touch with any changes which may be needed.

00:57.5  And part of that is going to be considering as well whether an individual that’s suffering with menopause or symptoms, whether there are any changes that may be needed there to support their working environment.

What should employers do to support staff during the menopause?

TRANSCRIPT

Sarah Hayes | 13th November 2023

What should employers do to support staff during the menopause?

00:05.0 So employers need to be mindful that the menopause can impact on staff in a variety of different ways and there’re lots of different symptoms and experiences that people will be having. As a starting point, managers should be trained and familiar with what the menopause is, what the different stages are and what the symptoms are that staff may be experiencing.

00:24.0 It can be really helpful to consider whether you have a menopause champion or a well being champion in the workplace. So that staff have someone approachable, somebody that is comfortable to go and speak to if they are experiencing any problems and they want someone there that they can just go and have a chat with.

00:40.2 And ideally that should be held in a confidential, private setting. We don’t want those meetings to be disturbed or for the employee to feel uncomfortable. So we want to think there about making sure that those are happening in an appropriate environment.

Do we need a policy for the menopause?

TRANSCRIPT

Sarah Hayes | 13th November 2023

Do we need a policy for the menopause?

00:00.0  So it’s not currently mandatory to have a menopause policy, so you’re not legally required to have one. However, it can be quite a helpful document to have a think about. A menopause policy will often signpost an employee to what support is available internally within the organisation and how they can go about approaching that.

00:22.5 So it can be quite a useful document to put in place as a way of making sure staff know how to go about accessing that support and help should they need to do so. And whilst it’s not currently mandatory, it is something that the government is aware of and has been discussing, and therefore there could be changes in the future where in which it could become more required or more custom and expected within organisations.

 00.44.7 So I hope you found that a useful overview of the menopause, how it interacts with employment law, and what steps employers should be taking to support their workforce. If you do require any support or assistance with the menopause or anything we’ve discussed in this series of videos, please don’t hesitate to get in touch with myself or any member of the employment team at Paris Smith.

01:05.1 As a department, we also offer a range of training, including topics such as the menopause, and we can deliver those in house, bespoke to the organisation. So if that is of interest to you, again, please get in touch with us, and we’d be very happy to chat that through.

Employment Law Conference – 2 November 2022

TRANSCRIPT

3rd November 2022

Employment Law Conference – 2 November 2022

Subject Access Request

TRANSCRIPT

Charlotte Farrell and Ryan Mitchell | 3rd November 2022

Subject Access Request

The Paris Smith Employment Podcast is a regular podcast that discusses all things related to employment law. The podcast is hosted by Charlotte Farrell and Ryan Mitchell, both are lawyers at Paris Smith LLP. In today’s episode, they discuss subject access requests and the key things businesses need to know about them. The GDPR was introduced in 2018 and has led to individuals becoming much more aware of their rights regarding their personal data. As a result, Paris Smith has seen more people making subject access requests.

You can find out more info here: https://parissmith.co.uk/your-business/commercial-law/data-protection-and-gdpr/


01:00:00 – The right to access personal data held by organisations is a legal right given to individuals.

02:00:00 – Personal data is any information that relates to an identified or identifiable living individual.

06:30:00 – Anonymised data can be excluded from a subject access request.

07:00:00 – Subject access requests are being used more often as a way to find information for employment tribunal claims.

07:54:00 – The main use for subject access requests in a commercial setting is to upgrade complaints to “super complaints.”

09:00:00 – The main points to consider when dealing with a subject access request are verifying the requester’s identity, diarising key dates, and trying to locate the requested information.

11:17:00 – Subject access requests are usually free, except for when they are excessive. If someone refuses to pay or withdraws their request, businesses may have trouble recovering costs.

13:38:00 – The business doesn’t have to send everything to the individual who they find. Someone needs to go through it and identify any documents which don’t need to be disclosed.

15:00:00 – Organisations need to include a cover letter with personal data when sending it to someone in response to a subject access request.

16:20:00 – Employees use subject access requests to check their personal data is being processed correctly and tactically.

18:16:00 – The government is proposing to decrease the threshold for an organisation being able to refuse to respond to a subject access request, or to be able to charge a reasonable fee.

19:19:00 – The word vexatious could potentially help to stop requests where the person is only using it to cause trouble for their employer or ex-employer.

19:50:00 – The top tip for dealing with subject access requests is to have a written procedure and use systems which allow for personal data to be easily searched, reviewed and extracted.

21:07:00 – HR and line managers should train all staff on the GDPR and data protection issues, including subject access requests. Staff should be aware of what they can and cannot do with personal information. Deleted emails are still searchable.

23:25:00 – The risks of getting subject access requests wrong include complaints to the Information Commissioner’s Office and investigations which can lead to instructions on how to correct procedures.

Transcript

Welcome to the latest edition of the Paris Smith Employment Podcast.

I’m Charlotte Farrell and for today’s podcast we are very pleased to also welcome a guest from our commercial team, our colleague Ryan Mitchell.

We regularly work alongside Ryan on all things GDPR and data protection related and today we’re delighted that he’s joined us to discuss subject access requests and the key things businesses need to know about them. With the arrival of the GDPR in 2018, data protection and the rights of individuals when it comes to their personal data has come to the forefront of many people’s minds.

We are definitely finding that individuals are much more aware of their rights when it comes to how their personal data is handled and we have seen an increase in people, not just employees, bringing subject access requests against business. This brings with it many practical issues need to bear in mind when carrying out their day to day tasks.

So today we’re going to look at some of these issues, not only from the employment angle but also the general issues businesses should be aware of.

So I suppose the first thing we should talk about is what a subject access request is. Ryan, can you give us a brief overview of what a subject access request is.

Of course! A subject access request is a request by an individual (which can be verbal, in writing or via an automated system) to receive copies of the personal information which an organisation holds about them. We call that personal information ‘personal data’.

When making a subject access request, the individual can also ask for additional information about how and why the organisation uses their personal data.

Individuals have a legal right to make subject access requests. This is called the ‘right of access’. It’s a right which is specifically set out in data protection law. Because it’s a legal right, organisations have a legal duty to respond to a subject access request, subject to some very limited exceptions which we’ll come on to.

So it’s a really broad right in that case then which can be very time consuming for a business to comply with. When you say, “personal data” or personal information, what does that cover. Is it any time that someone’s name is mentioned or is it more limited?

So ‘personal data’ means any information that relates to an identified or identifiable living individual. That individual is called the “data subject” in data protection speak.

To work out whether a piece of information is classified as ‘personal data’ it’s helpful to ask two questions:

1. Does the information identify a living individual? The information could be identifying on its own, for example a person’s name. Alternatively, it might be possible to combine this piece of information with other information the organisation holds (or may in the future hold) in order to identify someone. For example, an employee number can be combined with HR records to work out which specific individual in the business has that employee number.

If we’re combining information to identify a person then we call that ‘indirectly’ identifying personal data. If it’s obvious from the piece of information alone who the person is then it’s ‘directly’ identifying personal data.

2. The second question we need to ask ourselves is whether the information ‘relates to’ the individual. It’s not enough just to be able to identify the individual from the information. The information must ‘concern’ the individual in some way.

Let’s take two examples: the statement “Joe Bloggs lives at 15 Beachcroft Road” and a personnel file note that says “Mary Stewart is dishonest and I think she has been stealing from us”. These are both pieces of personal data. We know this because:

The answer to our first question – does the information identify a living individual – is yes. Each of these two statements contains the individual’s name, meaning they are directly identified.

The answer to our second question – does the information relate to the individual – is also yes. The statement about Joe Bloggs’ address relates to where he lives. The note about Mary relates to her work performance and her integrity as an employee.

Because these are statements containing each individual’s personal data, they would need to be disclosed following a subject access request.

However, let’s take another example. Say we have hundreds of work emails with Joe Bloggs’ name on where the content of the email doesn’t relate to Joe Bloggs as an individual. In that situation, Joe Bloggs’ name and email address on those emails would identify him (so the answer to our first question is ‘yes’) but these pieces of information don’t actually ‘relate to’ Joe (so the answer to our second question is ‘no). Rather, they’re just a record of who sent or received the emails. In this scenario, the emails wouldn’t need to be disclosed in response to a subject access request. The situation would be different if the substance of the emails did actually relate to Joe. For example, because they discussed his performance at work.

The second question, of whether information ‘relates to’ an individual, can lead to some grey areas. When these types of questions arise, a good starting point would be the ICO’s guidance (available online at www.ico.org.uk). The guidance includes a number of worked examples which are really helpful.

But what if the data is anonymised, does it still count as personal data then?

No – if the data is anonymised then isn’t treated as personal data. This is because it doesn’t identify a living individual. Provided you’re confident that the data is truly anonymised, it can be excluded from a subject access request.

Thanks Ryan for that very clear explanation. For three little words the process actually has some quite big implications and many businesses don’t understand that until they have to deal with it in practice themselves. We have definitely found over recent months and particularly since 2018 and the introduction of the GDPR that individuals are much quicker to make a subject access request and much more aware of what thy should be sent. Even though it wasn’t what the process was set up for, we’ve always seen them used in the employment world as a fishing expedition to see if there is are any juicy documents that its worth using to start a tribunal claim. If anything that has got worse since the GDPR.

Ryan, are there any particular ways that you regularly see them used in the purely commercial setting by clients or customers of business?

In a similar vein, we sometimes see customers make subject access requests if there’s a dispute. It’s a very easy way for an individual to upgrade their complaint to a ‘super complaint’ which can take a lot of time and sometimes money to respond to.

The main protection against these sorts of complaints is to have a good subject access procedure in place in readiness. When choosing new IT systems, it’s also a good idea to think about how easy it will be to search for personal data and extract it from the new system if a subject access request is received. This thought process when choosing or developing new systems is known as ‘privacy by design’.

Ok so I think it makes sense to now touch on the process a business should follow if someone makes a subject access request. If someone makes a subject access request there are key steps to take:

Firstly, always check the identify of the person making the request to make sure that it isn’t someone trying to commit fraud. If it’s an employee or someone the business knows personally you can speak to them to check the request came from them. Otherwise you can ask for ID such as a passport or drivers licence or copy of a bill to check the request is legitimate.

Secondly, make sure you diarise the key dates. Since the introduction of the GDPR you have 1 month to process the request. This can be extended by a further two months if the request is particular large or complex. If that’s the case you have to update the person and tell them that you need more time with the first one month time frame so make sure those dates go in the diary and don’t leave dealing with the request until the last minute. In some cases it can take a long time to go through all the documents produced so it’s worth starting early!

Thirdly, always check that the subject access request makes sense and that you understand what they’re asking for. if not you can go back to them to clarify the request and ask them to provide more information. The ICO doesn’t like companies that always ask for clarification though so make sure there is a legitimate reason for asking. The clock stops while you’re waiting to hear back from the person so this can be helpful when the request is very big.

Once you know what is being asked for the business must make reasonable efforts to find the information that was requested. They don’t have to conduct searches which would be unreasonable or disproportionate but will need to explain what searches they have done and why. It might involve searching servers, data bases, email folders and paper filing systems.

Ryan do you want to tell us a bit more about the costs of a subject access request.

Yes of course. So normally a business can’t charge someone if they make a subject access request – there used to be a £10 admin fee but that doesn’t exist anymore.

Now, the only times a business can charge for responding to a subject access request is if:
1. the request is ‘manifestly unfounded’ or ‘excessive’; or
2. the organisation is being asked to provide copies of information which the individual already has.

In either of these scenarios the organisation can charge a ‘reasonable fee’. Alternatively, if the request is ‘manifestly unfounded or excessive’ then the organisation can refuse to process the request altogether.

If you’re thinking of trying to charge the individual then it would be sensible to double-check with them that they still want to proceed, before carrying out any activities which you would look to charge for. If the individual refuses to pay, and you’ve already incurred the costs, then you may struggle to recover the money. If the individual withdraws their request, or part of their request, then you’ve saved the effort and cost of having to respond to it.

Additionally, we’d always recommend taking advice if you suspect a request is ‘manifestly unfounded’ or ‘excessive’. If the data subject complains to the ICO that you’ve unfairly refused to respond to the subject access request for these reasons then the ICO might want to double-check your reasoning. You may face a enforcement action (which could include a fine) if you got it wrong and failed to respond to a valid request.

For this reason, it’s good practice to still process the parts of the request which you don’t object to and then explain in the cover letter why you couldn’t or wouldn’t respond to the other parts of the request. The ICO will see this as a better compromise than refusing to comply with the entire request.
Leading on from this, Charlotte, does the business have to send everything to the individual that they find?

That’s a really good point and one that is often forgotten about. The simple answer is no. Once the company has found all the documents containing the personal information requested, someone needs to go through it and identify any documents which don’t need to be disclosed. There is a long list but some of the most common ones we are see are documents which also identify other people, documents which are covered by legal professional privilege, references, documents for the purposes of management forecasting or business planning which would prejudice the business if the information got out (i.e. a planned redundancy programme) and documents about negotiations between the parties which could cause problems in the negotiations if they were shared.

If any of this information is found the business needs to consider whether the document can be redacted to remove the personal information or whether consent can be obtained from the other people named in the document. If not then this can be withheld and a note added to the cover letter to explain this.

So having mentioned the cover letter, Ryan I know these are letters that you often have to put together for clients when they are responding to subject access requests, what information do businesses have to put in the cover letter when they send the personal information to someone.

Yes, the letter is an important part of the process. The ICO guidance sets out what information has to be in the letter and says which documents need to be sent with it. Often the letter is repeating information that is already set out in the organisation’s Privacy Notice or Privacy Policy, and so much of the content can be adapted from there.

I won’t summarise every item that needs to go in the cover letter, but it’s basically the ‘what, why, where and how long’ of the organisation’s data processing activities. The individual also needs to be reminded of their legal rights, including the right to complain. I’d recommend double-checking the comprehensive list of information in the ICO’s guidance before the cover letter is sent, just to ensure that everything has been covered.

Charlotte, you mentioned earlier that you often see unhappy employees sending subject access requests to their employers. Would you like to talk more about the trends you’ve seen with these types of request?

Yes we definitely do. I’m not sure employees always use them, in the right way though. the idea of a subject access request was so that an individual could check a business was processing their personal data in the correct way and for the reasons it was given to them. For example, not selling their contact details to people who want to sell them new windows, or sharing their health information with insurance companies. In the employment world, people tend to use them in a more tactical way.

We regularly see individuals make a subject access request at the same time as they raise a grievance to complain about something happening at work. Or if they are trying to negotiate a settlement package from their employer, an employee will make a subject access request in the hope that dealing with it will be too difficult for the employer and they will agree to the payment to avoid having to do so. Employees do also do it as a fishing exercise to decide whether or not they want to bring a claim and IU would say that more often than not they bring them for the nuisance factor. Sometimes this works and the employer responds to it, in other situations it annoys the employer and they dig their heels in and comply with the request to avoid giving in to what they can perceive as a threat.

Interesting. From the organisation’s perspective, it’s unfortunate that the law can be used in this way.

I know that last year the government consulted on whether to reintroduce a nominal fee for making subject access requests, like the £10 charge we had under the old law. In the end they decided not to go ahead with it.

Following that same consultation the government did decide to proceed with looking to decrease the threshold for an organisation being able to refuse to respond to a subject access request, or to be able to charge a reasonable fee to respond. You’ll remember from earlier that the current threshold is that the request needs to be ‘manifestly unfounded’ or ‘excessive’. In response to the consultation, the government said they would look to reduce this so that the organisation only needs to show that the request was ‘vexatious ‘or ‘excessive’.

This approach hasn’t been finalised but do you see this change as being a positive for employers?

Yes I really think it would be. We often see the word vexatious used to describe things in the employment world and it could potentially help to stop requests where the person is only using it to cause trouble for their employer or ex-employer. Those types of requests weren’t stopped by the “manifestly unfounded” Category as it didn’t quite fit!

What would your top tip for dealing with subject access requests be Ryan?

I previously mentioned that it’s important for organisations to have a written subject access request procedure. This ensures all the key personnel involved in responding to a subject access request know what to do and can take action within the legal time limit. Where possible, this should be supported by the organisation using systems which allow for personal data to be easily searched for, reviewed and extracted following a subject access request. If searching and collating the data is an issue then there are third party service providers who can help with this process, although they can be costly to use.

A data audit of the organisation’s systems can reveal which repositories of data are most likely to cause an issue. Often these are old, legacy systems or paper-based records which can’t be easily searched. The organisation might want to prioritise searching those sources first when receiving a subject access request. That way they don’t overrun the deadline to respond.

Charlotte, is there anything else which HR teams and line managers can specifically do to prepare for the eventuality of receiving a subject access request?

There definitely are and it is worth investing some time in training all those with line management responsibilities in them to try and make the process as easy as possible if someone does make a subject access request. Some common sense things are :
– to make sure email and filing systems are kept up to date and are easily searchable
– to keep all HR related emails and documents together in one central system and not on individual email accounts or hard drives
– be careful about what is said by email – if in doubt have a conversation
– when writing internal notes and emails, bear in mind that the person it is about and/or a judge could potentially read it in the future. If you wouldn’t want them to read it then reconsider what you’re writing

We also recommend all staff have training on the GDPR and data protection issues in general, including subject access requests so they know what they are and how they fit into the business. This doesn’t just apply to those who manage staff anyone who handles personal information about clients, customers or employees should be aware of the legislation and duties and know what they should and shouldn’t do.

It’s also important to remember that deleted emails are also searchable and so just because something has been deleted doesn’t guarantee that

Before we end our discussion on subject access requests today, I think its worth us just briefly touching on the risks of getting it wrong as well. Ryan do you want to share some final thoughts with us about that?

Of course. If the data subject doesn’t think that the organisation has complied with the process properly then they can complain to the Information Commissioner’s Office (the ICO). The ICO may launch an investigation in response to the complaint. It will take management time (and possibly legal fees) for the organisation to respond to the ICO’s enquiries.

If the ICO finds that the organisation has not followed the law then it may give binding instructions on how the organisation should correct its procedures and documentation. If there has been a serious breach of the law then the ICO might use its other enforcement powers, such as publishing a public notice about the breaches (which can lead to reputational damage) and/or issuing fines.
It’s therefore worth investing the time to ensure you respond to subject access requests properly and promptly first time around!

So that brings us to an end of our brief foray into data protection and subject access requests. Thank you to Ryan for being our first guest star on the employment podcast and thank you to you all for joining us too. We hope you found it useful. For further information in relation to the issues we have discussed today, please contact us via our website www.parissmith.co.uk or find us on LinkedIn.

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