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Bosses warned on workers' rights to personal data

A data-subject access request is the best and cheapest form of discovery available, a Mason Hayes and Curran LLP webinar has heard (15 November).

Employers and HR practitioners should be very conscious of the right of employees to request the personal data held by a data processor, which belonged to the worker, the event heard.

This right excludes day-to-day work, so a requester is not entitled to their full email inbox, because the right separates personal data and work data associated with a job.

The data must be provided within 30 days, which can place significant pressure on an employer.

The firm has dealt with redundancy cases where those selected for exit have found emails relating to finding their replacement prior to the process beginning. 

Employment law partner Ger Connolly also said that employers who were party to a labor dispute should always be aware that any email might eventually end up in the hands of a legal opponent.

“When you write an email, you should always be of the view that it's going to be shown to the third party or to the employee …  and that, of course, will formulate how you write these emails,” he said.

Circumspect

Employers should be circumspect, rather than committed, in their positions, and ideally avoid using the employee name, the lawyer added.

"[Subject access request] is an extremely powerful tool, particularly in employee and employer relationships, and in litigation, because it is free," Connolly said. 

"I sometimes wonder how many HR files exist anymore," he added.

Permit

A total of 16,000 employment permits were issued last year for work by non-nationals in Ireland – up from 9,000 previously.

A review of the permit system had found it to be "very workable", Connolly said, with no wholesale changes required.

Despite an expected recession, administrators believed there would still be a demand for over 15,000 permits, Connolly said.

Recent legislative updates have introduced seasonal permits, at ministerial discretion, which were tested in meat-processing factories.

The requirement under the Labour Market Needs Test to advertise a job vacancy in a newspaper will no longer apply when the Employment Permits Bill 2022 is enacted, and the system moves fully online, Connolly explained.

What were now guidelines would become regulations, he added.

Application-processing is at a record low of about four weeks from filing, he said, though it was best for employers to allow eight weeks.

Offers

Employment offers that had been made and accepted, but where the individual had not started work, could not legally be rescinded, partner Melanie Crowley said.

“The correct thing to do is to terminate the employment relationship on notice, even though it hasn’t really started … There are contractual obligations there,” she explained.

A European directive on transparent and predictable working conditions should have been implemented by last August, although many of its provisions were already part of the statutory framework, Crowley said.

Sick pay has been entirely at the employer's discretion in the private sector, and can vary hugely, but the new bill will give three days of statutory sick pay only on provision of a sick certificate.

"A lot of employees are unhappy that this forces them [to go] to the doctor really early, and incur that expense, but that's the system that the Government sees as workable," Connolly said.

For the first three days of statutory sick pay, a worker is entitled to 70% of wages, capped at €110, in line with a similar provision in the North.

A trip to the GP would cost up to €60, despite the €110 cap, Crowley pointed out.

Sick pay without a certificate would be at the employer's discretion and would not be statutory, Connolly added, and might lead to arguments about the requirement for a doctor's note.