What are the data protection implications of holding Covid-19 health data?
The ICO is providing new guidance to organisations regarding data protection and coronavirus, which can be accessed here: https://ico.org.uk/for-organisations/data-protection-and-coronavirus/
Information about the Covid-19 health status of individuals is special category data under the GDPR. This means it is high risk which has implications for how you use it, store it and keep it secure.
You will already hold health data about your employees as this is necessary to provide a safe, accessible place to work and to make reasonable adjustments to the workplace. You now need to make sure that the information you gather about your employees, visitors to your sites, customers and suppliers about Covid-19 is processed in accordance with data protection laws.
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It really depends on what your measure of success is! We would suggest regular wellbeing surveys – if the results of wellbeing surveys suggest that the culture is becoming more open, more psychologically safe, if people are asking for help or referring colleagues to MHFAs as a safe and effective pair of hands – these would be strong indicators of success.
Under usual rules, workers are entitled to a minimum of 28 days holiday including bank holidays, each year. Except in limited circumstances, it cannot be carried between leave years meaning that workers lose their holiday if they do not take it.
The government passed emergency legislation relaxing the carry-over of the 20 days leave entitlement provided under EU law. Where it is not reasonably practicable for an employee to take leave in the relevant leave year as a result of the effects of the coronavirus then they could be entitled to carry over the untaken leave into the next year.
Parties are encouraged to review upcoming matters to assess the viability for there to be any agreement which can be reached in relation to the issues in dispute or to consider whether the case needs to proceed to a remote hearing. If directions or issues can be agreed between the parties, reducing the need for remote hearings, then that is the preferred option.
The Government has introduced new regulations, which took effect on 14 May 2020, to relax the publicity requirements in respect of planning applications.
Planning applications are usually required to be publicised by way of site notices and local newspaper notices and applications are to be made available for public inspection. The Government has recognised that these actions may not always be possible in accordance with social distancing guidelines and in order that Councils do not delay applications as a result of an inability to comply with the publicity requirements, the Government has relaxed the requirements.
A Local Planning Authority is now required to “take reasonable steps” to publicise a planning application, which may be through use of online newspapers, social media, or other electronic measures. What is considered reasonable will depend upon the circumstances of an individual application and will be proportionate to the scale and impact of the development. A large development that has previously generated significant interest will require more steps to bring the application to the attention of all of those with an interest than a householder application. The guidance emphasises the role of the publicity requirements, namely to enable those with an interest to make representations and to effectively participate in the decision making process and therefore community engagement remains key. It is recommended that the officer’s report refers to the steps taken where a Council has relied upon the temporary publicity arrangements.
The requirement to make planning applications available for public inspection has also been temporarily suspended providing that the applications are available for online inspection. In reality most LPAs already provide such an online facility. Where individuals are unable to access an application online LPAs should make alternative arrangements, for example providing information over the phone or providing a hard copy set of documents by post.
The regulations however only amend the statutory publicity requirements. In addition to these, all LPAs are required to have a Statement of Community Involvement which may provide for additional publicity requirements and the LPA will be bound by these regardless of the temporary relaxation of any statutory requirements. Where a Statement of Community Involvement does go beyond the statutory requirements, the Government guidance suggests that LPAs update these to ensure that local communities can continue to be consulted in the current climate.
The regulations are currently due to expire on 31 December 2020.
The Cabinet Office has published a useful Procurement Policy Note (“PPN”) on relief available to suppliers due to Covid-19 (available here). In brief, you should not be penalised by a public sector body, if, in the current circumstances, you are unable to comply (fully or partly) with your contractual obligations. Public sector bodies are expected to work with suppliers and, if appropriate, provide relief against current contractual terms. This is in order to maintain business and service continuity and avoid claims being accepted for other forms of contractual relief, such as the occurrence of a force majeure event.
The types of relief that may be available to suppliers to the public sector will depend on the existing contracts in place. Some contracts may have a payments by result mechanism, whereas others may be based on certain key performance indicators (KPIs) being met. Other contracts may not include any such mechanisms and therefore it will be a matter for discussion between suppliers and the public sector body.
The PPN provides that, rather than a supplier seeking to invoke a clause that would permit the supplier to suspend performance of its obligations (such as a force majeure clause), public sector bodies should first work with the supplier to amend or vary the contract. Any changes should be limited to the particular circumstances and considered on a case-by-case basis. Changes could include:
- Amending the contract requirements
- Varying timings of deliveries
- Relaxing KPIs or service levels
- Extending time for performance (e.g. revising a contract delivery plan), and/or
- Preventing the public sector from exercising any rights or remedies against the supplier for non-performance (e.g. liquidated damages or termination rights).
These should only be temporary variations and the contract should return to the original terms once the impact of the Covid-19 outbreak on the contract has ended. Discussions with the public sector body about any changes that are agreed should be documented, in a variation signed by both parties.
A public sector may also need to take account of regulation 72 of the Public Contract Regulations 2015, to ensure that any changes to a contract (even of a temporary nature) do not trigger a requirement to conduct a new tender process. Whilst this may be unlikely to be the case with temporary variations, suppliers should still bear this in mind when discussing any changes to a contract with a public sector body.
If you are a supplier to a public sector body and you are currently struggling to meet your contractual obligations, we recommend that you take legal advice as to whether it might be possible to take advantage of the flexible approach that the PPN requires public sector bodies to adopt – it could be that you can avoid service credits or other financial deductions, or the need to serve formal notices such as “force majeure” or other relief notices.