GDPR? EVENT SEASON 2018. EMPLOYEES MAKE THE WORLD GO ROUND .... If you want more personal guidance, we are running more
TRUMPETS AT THE READY A fanfare, please, for the cheeriest flower in Britain
WHEN THE PROCEDURE PAYS OFF Proof of the procedural pudding
QUESTIONS YOU NEED TO ANSWER Are you ready for GDPR?
Your weekly bulletin of wit & wonder in the world of…
Wg Employment Issue 590/March 2018 When I heard about the snow this week I was concerned. We all know snow is a wonderful thing... as long as you haven't got to GO ANYWHERE or DO ANYTHING. If all that's required is a bit of frolicking and snowman building in the garden, it's a joy. But for everything else... not so great. But this wasn't what concerned me. No. I was upset... for the daffodils. Because I'd only just noticed them springing up, beside the lake, beneath the trees, fluttering, dancing, round the back of ALDI. Their little yellow faces had only just started peering out and melting the winter in our souls when THWUMP - buried under a blizzard. But like Gloria Gaynor with pollen, they will survive. I know they But will gamely grow up andwith keep waving their hopeful petals. Sowill to keep the like Gloria Gaynor pollen, they willlittle survive. I know they gamely faith I have looked up some interesting daffy facts for us all: grow on and up and keep waving their little hopeful petals. So to keep the 1. 2. 3. 4. 5. 6. 7.
faith I have looked up some interesting daffy facts for us all: Back in the 14th century the daffodil was known as an affodil. The first recorded ‘daffodil’ was in 1538. Nobody knows why the D showed up. Daffodils are also known as jonquils, paperwhites and narcissus. Florists may not be so keen. Some of them suffer from a skin condition called Daffodil Itch (not to be confused with Iris Impetigo or Snowdrop Scabies). Daffodils aren't as innocent as they look. Their bulbs kill squirrels. Daffodils are mentioned twice in Shakespeare's The Winter's Tale. Not in any other of his plays. We don't know why... Like so many things, daffs were brought to Britain by the Romans. Every year the Scilly Islanders pay rent to Prince Charles for their land. The rent is a single daffodil.
Spring IS coming. It really is. Probably in the wake of a gritting lorry, but still...
Occupational hazard And speaking of potential slips ups brings me to the case of Donelion v Liberata UK Ltd. Ms Donelion was employed as a Court Officer for 11 years before she was dismissed in October 2009, for failing to comply with the absence notification procedure and persistent short term absences. In the final year of her employment Ms Donelion was absent for a total of 128 days. Numerous explanations were given including hypertension, stress and anxiety, viral infections, dizziness, head colds, stomach upsets and on one occasion Ms Donelion provided no explanation for her absence. In May 2009 Liberata referred Ms Donelion to its occupational health service, which issued a report in July stating that Ms Donelion was not disabled but had failed to respond to some of the questions asked of her. Liberata followed this up by receiving a more detailed report from a different doctor at the occupational health service. Further efforts were made to investigate whether Ms Donelion was disabled by holding return to work interviews and considering correspondence from her GP.
EVENT SEASON 2018 EMPLOYEES MAKE THE WORLD GO ROUND Wednesday 7th March
MENTAL HEALTH CHECK Tuesday 10th July
SEXUAL HARASSMENT IN THE WORKPLACE Thursday 7th June
PRACTICE MAKES PERFECT Wednesday 17th October
PULLING A SICKIE Wednesday 5th September
To book onto any of our events email Karen Clarkson or Gina Spampinato at
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Following her dismissal Ms Donelion brought a number of claims in the Employment Tribunal (ET) including a claim for failure to make reasonable adjustments. The ET found that Ms Donelion was disabled from August 2009 and this would have had a substantial impact on her day-to-day activities at work prior to her dismissal. The parties agreed Liberata did not have actual knowledge of Ms Donelion’s disability, but the issue was if Liberata had constructive knowledge of the disability. The ET dismissed Ms Donelion’s claims. They found that there was no constructive knowledge of Ms Donelion’s disability and the conclusion that Ms Donelion was not disabled was consistent with the advice given from the occupational health adviser. The ET also found that Liberata had done all that could reasonably be expected to discover any disability. Ms Donelion appealed to the Employment Appeal Tribunal (EAT), who agreed with the ET that Liberata did not have constructive knowledge of Ms Donelion’s disability. The EAT considered that Liberata had not relied unquestioningly on the occupational health report and did enough to escape constructive knowledge. Ms Donelion appealed the EAT’s decision to the Court of Appeal, but they upheld the decision of the EAT.
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The decision of the Court of Appeal shows employers can continue to rely on occupational health adviser’s advice when determining issues of disability but do need to ensure appropriate questions are raised and further clarification sought where necessary. The Court of Appeal made it clear that occupational health reports are of value, but should not just be accepted at face value. The decision here could have been different had Liberata not followed up on the first occupational health report. This highlights the importance of asking further questions where the initial report does not address all the issues raised by the employer.
Get your data in order Last week's masterclass on GDPR was, as you probably aren't surprised to hear, rammed! We covered a lot and are confident our attendees left feeling reassured and armed with what they need to know to manage the changes in the law arriving in May. Like an advanced army (but with nicer hair and markedly less violence) our Peace of Mind team are busy preparing documents for POM members who have access to this support. If you're one of them, you’ll have been sent a questionnaire to help us tailor the appropriate privacy notices, staff contracts and documents. If you want more personal guidance, we are running more GDPR workshops (next date is 15th March) and there are, at time of writing, still some spaces - so do contact us at
[email protected] if you'd like to attend. If you're still concerned about GDPR remember you can call us - on 02380 717717 - or email Sarah -
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Contact the team Sarah Whitemore (Partner) – 02380 717462 Howard Robson (Partner) – 02380 717718 Lisa Joyce (Associate) – 02380 717447 Emma Kemp (Associate) – 02380 717486 Natalie Rawson (Solicitor) – 02380 717403 DISCLAIMER While every effort is made to ensure that the contents of these diaries are up -to-date and accurate, no warranty is given to that effect and Warnergoodman does not assume responsibility for their accuracy and correctness. The diaries are provided free of charge and for information purposes only. Readers are warned that the diaries are no substitute for legal advice given after consideratio n of all material facts and circumstances by an experienced employment lawyer. Therefore, reliance should not be placed upon the legal points explained in these diaries or the commentary upon them.
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