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Auto Enrolment and Data Protection 
 
As previously reported; 1st October 2012 saw the commencement of ‘Auto-enrolment’ in the United Kingdom. Auto-enrolment requires employers to register all employees into a relevant pension scheme, unless the employee chooses to opt-out of the scheme. The implementation of the scheme will take place over several years, with the largest employers in the country going first and gradually working down to the smallest employees, with an expected completion date in 2017. 
 
However, the scheme has already highlighted the related issue of Data Protection; with a Scottish Borders Council having recently been fined £250,000 for breaches under the Act, specifically related to the failure of a third-party to properly dispose of the Council’s pension records. In this case, the third party were engaged by the Council to digitise their pension records and having done this, the third-party company then disposed of the paper records in a recycling bin, which were then found by a member of the public. These files were found to contain employee national insurance numbers, bank details and dates of birth and the situation was further compounded when it was discovered that there was no written contract in place between the Council and the third-party supplier. The failings in this case, highlighted by the Information Commissioner were that the Council had not: - 
Selected a data processor who provided sufficient guarantees for its data security measures and compliance with them 
Had in place a written contract 
Checked whether the supplier had secure data destruction facilities 
Required the secure disposal of files or the supply of suitable certificates of destruction 
Had regular monitoring in place. 
 
This case highlights the need for employers to ensure that they take due care in their preparation for auto-enrolment, not to breach any of the eight Data Protection Principles and ultimately, the Act itself. By way of a quick refresher; the Data Protection Act requires that anyone who handles personal data complies with the eight data protection principles, the first of which is the need to keep personal and ‘sensitive personal’ (i.e. NI Numbers, ethnicity, health issues and bank details) secure. 
 
Under the Act; ‘Data Controllers’ are required to comply with the Act whilst ‘Data Processers’, who may be appointed on behalf of the Data Controller to provide services connected with the management, handling and storage of the Data Controllers data, have no direct obligations under the Act. There is therefore a requirement under the law for certain terms to protect and safeguard personal data, to be included within a written contract between the Data Controller and the Data Processor. As the Data Controller is ultimately the ‘person’ who will be accountable for any breaches, it is essential that they take appropriate steps to protect themselves and their data when engaging others to provide services which gives them access to that data. 
 
Why is this relevant to Auto-enrolment? 
In order to comply with their obligations under auto-enrolment, it seems likely that many employers (who will be the Data Controllers) will engage the services of others to administer the scheme on their behalf e.g. Pension Providers, Pension Scheme Trustees, Administrators and Payroll Providers, all of whom will become ‘Data Processors’ on behalf of the employer. The employer will be wholly responsible for what those parties do with their data and therefore the employer must ensure that they have robust procedures in place to ensure compliance with the Data Protection Act; the employer will need to ensure that a written contract is in place which properly addresses data protection and that they [the employer] are regularly monitoring the third-party supplier’s compliance with the legislation. 
 
Currently, the maximum fines imposed are up to £500,000, but this may shortly be increased to 2% of global turnover. As a consequence, there is a clear need for employers to address this as they prepare for auto-enrolment. 
 
Agency Worker Regulations ~ one-year on... 
 
The Agency Worker Regulations have now been in force for just a year and this week has seen conflicting reports published of their impact on businesses. 
 
In its report, the CBI has conducted research which suggests that the Regulations have cost businesses £1.5bn in the year since they were introduced, but that much of this cost has been spent on bureaucracy to ensure compliance, rather than any real benefit being passed to the Agency Workers themselves. The CBI have also suggested that this in turn has led to a reduction in the hiring of Agency Workers in eight of the nine months so far in 2012; reporting that 57% of employers with a temporary workforce had reduced their use of Agency Workers, whilst a further 8% had stopped using them all together as a result of the Regulations. 
 
This view is not shared by the Recruitment and Employment Confederation (REC), who have conducted their own research and found that whilst 28% of employers had decreased their use of Agency Workers in the seven-months following the implementation of the Regulations, more than half of those (56%) had cited ‘economic uncertainty’ as the key reason for this reduction; with only 14% of employers stating that they had reduced their use of Agency Workers as a direct result of the Regulations. The REC has also reported that their latest data suggests that the employment prospects for temporary staff is already improving, despite the fact that the country is still officially in recession. 
 
So what are the Agency Worker Regulations? 
 
In a nutshell, the Agency Worker Regulations were introduced in the UK as an enactment of the EU Temporary Workers Regulations Directive 2008. The regulations afford Agency Workers certain rights in relation to their basic terms and conditions of employment at the end of a 12-week qualifying period and in addition, from day-one of their assignment with a ‘Hirer’, they will be entitled to have access to collective facilities and/or amenities that are available to permanent staff from day-one of their employment, such as; gym/leisure facilities, crèche, staff restaurant/canteen and prayer room etc. The specific rights to Equal Treatment relate directly to the basic terms and conditions that the temporary Agency Worker would have been entitled to receive had they been directly recruited by the Organisation for whom they are conducting a temporary assignment. 
 
It is important to note that although the regulations relate to ‘equal treatment’, there are many differences between the Regulations and established anti-discrimination/equality legislation. The Regulations are set to be reviewed by the Government during 2013 and further updates will be provided as they are known. 
 
Olympic and Paralympic Security 
 
Few will have failed to hear of the debacle that surrounded the security arrangements covering the Olympic and Paralympic games over the summer; where G4S spectacularly failed to recruit sufficient security personnel to provide appropriate cover for the Games and which resulted in many Armed Forces Personnel being drafted in to cover the shortfall. 
 
In essence, G4S only delivered 75% of the required security personnel to cover the event, with the principal reason for the failure being attributed to the vetting and screening of potential candidates taking 4-times longer than had originally been anticipated by G4S. Additionally, there was inadequate monitoring and tracking of candidates during the recruitment, training and accreditation process, with many of those selected from the 100,000 interviewed, not completing the process at all.  
 
The process has been described by Neil Buckles, G4S Chief Executive Officer as being ‘a humiliating shambles’ which has now claimed its first high profile ‘scalps’; as the Chief Operating Officer and a Managing Director have both resigned from their posts as a direct result of the scandal and subsequent review conducted by PWC. The Home Affairs Select Committee has also called for G4S to return the £57m management fee it had received within the contract, but as yet, it is not clear whether this will actually happen. 
 
RIDDOR Consultation 
 
A consultation exercise is ongoing and due to conclude at the end of October, into how the ‘Reporting of Injuries, Disease and Dangerous Occurrences Regulations 1995 (RIDDOR) can be simplified and clarified. The consultation, which started over the summer, has arisen as a result of recommendations made in the Löfstedt Review, which was published in 2011 and which aims to make Health and Safety Laws easier to understand and to comply with. This review found that categories of reportable accidents/incidents were unnecessarily complicated and Organisations were spending considerable amounts of time trying to determine if accidents/incidents should in fact be reported under RIDDOR. 
 
The HSE is proposing that the following work-related incidents, currently covered by RIDDOR, are simplified and reported by employers and those in control of work premises and it is these that are subject to consultation: - 
all deaths to both workers and people not at work 
all major injuries (but simplified list) to people at work 
over-7-day injuries to people at work 
dangerous occurrences that occur within major hazard industry sectors or within other specified higher risk sectors or activities such as construction 
 
Employers and those who control work premises also should have to record, but not report all reportable incidents (other than gas events) and over-3-day injuries to people at work. 
 
It is also proposed that the following requirements are removed from the regulations: - 
cases of occupational disease, other than those resulting from a work-related exposure to a biological agent 
non-fatal accidents to people not at work 
dangerous occurrences outside of higher-risk sectors or activities 
the reporting by self-employed persons of injuries or illness to themselves 
 
This consultation follows the previous changes, which took effect from 6 April 2012, by which RIDDOR’s over-3-day injury reporting requirement changed from over 3 days’ to over 7 days’ incapacitation (not counting the day on which the accident happened). 
Stress in the Workplace 
 
Research conducted by Towers Watson as part of its ‘Global Talent Management and Rewards Study’ has shown that the levels of ‘excessive stress’ amongst workers in the UK is on the rise. A third of UK companies participating in the survey have indicated that workers often experience excessive pressure levels in their job; a further 57% of businesses report that their employees have been working more hours than normal over the past three years and this is predicted to continue over the next three years. 
 
The UK is not alone in reporting such figures, with 47% of businesses in Europe, the Middle East and Africa (EMEA) reporting high levels of stress amongst their workforce and as many as 60% in the United States of America. 
 
However, the UK appears to be faring better when it comes to recruiting and retaining employees with critical skills in these difficult times; with only 39% of UK respondents reporting difficulties in recruitment compared with 68% in the EMEA region and 72% in the United States of America. Likewise, less than 40% of UK respondents expressed any difficulties with retaining such critical staff, compared with 56% of global companies who were encountering difficulties in the retention of these staff. 
 
Managing Sickness Absence 
 
In a further recently published research report, Aviva’s Absence Management Report 2012, it has been found that many employers are still struggling to effectively manage sickness absence and require more support in the management of staff ill-health, rehabilitation and return to work following prolonged periods of sickness absence. 
 
Almost half of employers who responded to the survey have said that sickness absence remains a significant issue for them and that they have found that more staff have taken sick leave during the last few years, with the two main reasons for absence cited as mental health problems and musculoskeletal issues. 
 
Other findings from the research were: - 
 
There is a knock-on effect of sickness absence across the workplace; 40% of employers report that work is passed to another employee to pick up; nearly 20% have reported other team members going off sick as a result of a colleague’s absence and 10% report a fall in motivation across the whole workforce as a result of absence. 
 
The benefits of early intervention are beginning to be realised, with 20% of employers now providing staff training to help line managers’ spot early indicators of stress and ill-health in employees and just over 10% of employers offering workplace wellness benefits. However, over 30% of employers still rely on their employees notifying them that they are unwell. 
 
Just over 30% of employers reported seeing their absence rates fall over the past few years. Whilst 16% believe that this is due to an increase in ‘presenteeism’ (employees attending for work whilst not feeling 100%), there is strong evidence to suggest that some of these falling rates can be attributed to employers taking positive steps to control sickness absence. 
 
Managing staff back to work following a period of sickness absence was identified as a significant issue for many employers, with only 20% responding that they felt equipped to help staff back to work after a period of long-term absence; nearly 30% stated that they offered little or no support to returning employees and almost 25% felt that they didn’t have the resources or expertise to handle the task. 
 
With the UK still losing in excess of 130 million working days as a result of sickness absence, the impetus on employers to recognise the benefits of effective management of sickness absence and more importantly, rehabilitation and return to work, remains high on the agenda. 
 
 
Previous Updates:- 
 
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