Information as to any offence a data subject has actually or allegedly committed and any resulting proceedings is ‘sensitive personal data’ for the purposes of the Data Protection Act 1998 (DPA 1998). Sensitive personal data must be processed in accordance with the obligations under DPA 1998, ie the data controller (ie the employer) must comply with at least one of the conditions in each of DPA 1998, Sch 2, 3. For further information, see Practice Notes: • Criminal records—asking questions and DBS checks It is clear that a Disclosure and Barring Service (DBS) certificate containing information as to an individual’s actual or alleged offences and resulting proceedings amounts to sensitive personal data. It is not absolutely certain that a ‘clear’

Where an employer pays staff differently according to their length of service there is a risk that this would amount to indirect discrimination under the Equality Act 2010 (EqA 2010). EqA 2010, s 19 provides that a person indirectly discriminates against another (the complainant) if the complainant possesses any one of the protected characteristics other than 'pregnancy and maternity' and: • they apply a provision, criterion or practice (PCP) to the complainant, and • they apply, or would apply the same PCP to persons who do not possess the same protected characteristic

There is no stand-alone requirement to inform an employee about internal vacancies while she is on maternity leave. However, consideration should be given to: • the enhanced protection from redundancy available to an employee on maternity leave • protection from discrimination under the Equality Act 2010 (EqA 2010) Enhanced protection from redundancy Where the employer is informed of the employee’s pregnancy on or after 6 April 2024, the enhanced protection from redundancy under Maternity and Parental Leave etc Regulations 1999 (MAPLE 1999), SI 1999/3312, reg 10 extends to period of her pregnancy and an additional protected period after the end of maternity leave (usually 18 months after the expected week of childbirth after maternity leave). Where it becomes not practicable by reason of redundancy for the employer to continue to employer the employee under her existing contract of employment during this protected period, then the employer must offer the employee any suitable available

An individual’s private emails and, depending upon the contents, private documents, will comprise personal data as defined in section 1 of the Data Protection Act 1998 (DPA 1998). They may also include sensitive personal data within the meaning of DPA 1998, s 2. As data controller, the employer (or former employer) must comply with the eight data protection principles in relation to personal data (including sensitive personal data) (DPA 1998, s 4(4), Sch 1, Part I). In accordance with the first data protection principle, unless an exemption applies, personal data must not be processed unless at least one of the following conditions is met: • the individual who is the subject of the personal data has consented to the processing • the processing is necessary: ◦ in relation to a contract which the individual

Contractual considerations Once an offer of employment has been made and accepted by the employee, the contract of employment is formed. If the employer then changes its mind at that stage, it will not be able to withdraw the offer. It will instead have to terminate the employment contract by giving the employee contractual notice, even if they have not yet started work. In practice this will usually mean making them a payment in lieu of notice (PILON). For further information, see: • Practice Note: Offer of employment, under the main section dealing with ‘Accepting the offer’ • Q&A: Where an individual accepts an employer's offer of a new job,

In relation to reinstatement, generally, where an employee is reinstated the effect usually is that the employee is treated as if they had never been dismissed, with all the terms of their employment contract restored to them, and continuity of employment preserved. For information on reinstatement following a successful unfair dismissal claim generally, see Practice Note: Reinstatement. Assuming that the reinstatement here occurred following a successful internal appeal, there is in principle nothing to stop an employer from reinstating a postponed disciplinary process in appropriate circumstances. The employer might, however, want to consider the nature of the charges or allegations against the employee and whether there is

Can an employer withhold a statutory redundancy payment if an employee has not returned a company laptop on termination of their employment? A worker is entitled to a redundancy payment under section 135 of the Employment Rights Act 1996 (ERA 1996) when: • they are an employee • they have been continuously employed for not less than two years at the ‘relevant date’ • they have been dismissed, and • the dismissal was by reason of redundancy For further information, generally, see Practice Note: Entitlement to statutory redundancy payment. An employee may make a claim to an Employment Tribunal regarding any question as to: • their right to a redundancy payment, or • the amount of a redundancy payment An individual cannot contract out of their right to a statutory redundancy payment other than in very specific circumstances, such as an Acas-conciliated COT3 agreement or a valid settlement agreement. Employers who

The Management of Health and Safety at Work Regulations (MHSW Regs) 1999, SI 1999/3242, reg 16 breaks an employer’s duty into two separate obligations, one which occurs prior to notification by an individual employee that they are pregnant, have given birth within the previous six months or are breastfeeding, and the other which is engaged after. These comprise: • a general duty on employers

The Pregnant Workers Directive 92/85/EEC (PWD) requires Member States of the EU to implement measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding. The provisions of the PWD that relate to risk assessments and remedial action are implemented into UK law by the Management of Health and Safety at Work Regulations 1999 (MHSW Regs 1999), SI 1999/3242 and the Employment Rights Act 1996 (ERA 1996). The relevant provisions of MHSW Regs 1999, SI 1999/3242 and ERA 1996 that implement the PWD are retained EU law. For further information on the implications of this, see Practice Note: Retained EU law in employment [Archived]. In relation to decisions of the Court of Justice of the European Union (CJEU), judgments handed down on or before 31 December

Right to work checks A correctly conducted right to work check can provide an employer with a statutory excuse against a civil penalty for employing a person illegally, should it be that the employee in question does not have, or loses, the right to work at some point during the employment. To obtain the excuse, the employer must show that it has taken particular steps during the right to work check. Whatever the circumstances of the worker’s illegality, a valid right to work check will, with one important exception, act as a statutory excuse for the employer against a civil penalty. The sole exception to this is where the employer has had knowledge ‘at any time during the period of employment’ that the employment was unlawful. The use of the phrase ‘at any time’ suggests that knowledge of illegality does

It has been assumed the employees in question only work outside of the places to which the Immigration Act 1971 (IA 1971) applies, ie: • the UK, which includes England, Wales, Scotland and Northern Ireland—for further information, see attached, Commentary: Definitions relating to the United Kingdom, territories and dominions: Halsburys

Statute confers several important rights upon an independent trade union once it has been recognised. Most of these are conferred whether the union’s recognition is statutory or voluntary. The rights conferred on an independent and recognised trade union include the following: • the right to disclosure of information by the employer for the purposes of collective bargaining • the right for union officials, learning representatives of the union, and other union members, to take time off work for trade union duties and/or activities • the right to be consulted on a number of issues The purpose for which a trade union is recognised, and the level at which it is recognised, will determine, further, the level of access it has to the workplace. For example, a facilities agreement is the lowest level of recognition by an employer, and allows the union to use some facilities within the employer’s premises, such as noticeboards and/or office space. For further