Will there be further measures for self-employed announced?

The definition of a relevant establishment is a question of fact for an Employment Tribunal. Guidance from case law says that ‘establishment’ should be interpreted very broadly (so as to avoid employers escaping the need to collectively consult), and may consist of:

• A distinct entity
• With a certain degree of permanence and stability
• Which is assigned to perform one or more tasks
• Which has a workforce, technical means and a certain organisational structure to allow it to do so

However, there is no need for it to have the following:

• Legal, economic, financial, administrative or technological autonomy
• A management which can independently effect collective redundancies
• Geographical separation from the other units and facilities of the undertaking

CMA guidance suggests that it will not take enforcement action in respect of agreements which:

• Are appropriate and necessary to avoid a shortage, or ensure security, of supply
• Are clearly in the public interest
• Contribute to the benefit or wellbeing of consumers
• Deal with critical issues that arise as a result of the Covid-19 pandemic
• Last no longer than is necessary to deal with these critical issues

Employers and employees can decide the split of the hours of work and the hours of furlough. There is no maximum or minimum requirements. You can change the arrangement, by agreement, from time to time.

When claiming for employees who are flexibly furloughed, you should not claim until you are sure of the exact hours they will work during the claim period.

The Government has announced a £750 million funding package for charities to ensure they can continue their vital work during the coronavirus outbreak.  This is for a 3 month period and further specific funding may be made available.

Charities which are businesses can also access the Government’s Coronavirus Business Interruption Loan Scheme (CBILS) – Please see our Funding and Finance FAQ’s.

You also need to consider other aspects of data protection.

Be proportionate – only gather and use Covid-19 data where you need to.

Keep data to a minimum – you shouldn’t gather more data than you need. You need to know someone has Covid-19 but you don’t need to know all their symptoms. Data minimisation also applies to who gets access to the data. It’s unlikely that a spreadsheet, accessible to everyone updating them on the health status of all employees, would be appropriate. Data should be shared on a need to know basis. You need to balance the privacy of individuals against your duty of care to be responsible with regards to the data of your employees, visitors, customers and suppliers.

Keep it up to date – make sure you update data. People’s health status will change and if you keep a record of this, you need to  make sure it is accurate and up to date (although this doesn’t mean you should batter individuals with constant requests for updates on health status. Again, be proportionate).

Identify individuals only when you need to – although you will need to know who has Covid-19, that doesn’t mean you need to tell everyone in the organisation. As soon as you can, you should remove personal data from any information you gather. For example, you might want to update employees on the health status of their fellow employees but you probably don’t need to name individuals and even if you feel it is necessary, you should keep the information you provide to a minimum. Removing personal identifiers in a document is also a good data security technique.

Keep the Covid-19 health data secure – Covid-19 data will be special category data and deemed high risk. This means that if you have a breach of this data you will need to notify it to the ICO. A breach could happen by someone losing a print-out of the names of Covid-19 employees, customers or visitors. It could also happen if you set access rights to lists of Covid-19 sufferers open to more people than need to know the information. The risk of ICO enforcement action increases with the potential harm the disclosure could cause. Although the ICO has indicated that it will be understanding about the impact of Covid-19 on normal operations, this doesn’t mean that they will not prosecute you if the breach is sufficiently serious.

Destroy the data once you don’t need it – Finally, of course, make sure that you delete data at the end of your needs. This might last longer than the pandemic, for example if you have an insurance claim or ongoing litigation. If you do need to keep it, consider whether or not you can delete some of the data to minimise what you hold.