ARAG Legal Services website - Free Business Bulletins PART 2

I hope your clients have rushed to register to use  > araglegal.co.uk , following my earlier blog, in which I provided information about the General Data Protection Regulations, extracted from the Business bulletin which is produced by the team behind our Business Legal Services website.

I explained that in addition to maintaining the law guide and creating on-line legal documents for clients to customise to their own circumstances, our content team also publish topical Business Bulletins. Once registered with the site, customers can opt- in to receive these.

 Here’s a second chance for you to encourage clients to register. Below is an extract from a recent bulletin on employment cases. Take a minute to send this to your clients with a reminder of their voucher code and encourage them to register on the Business Legal Services website to receive information like this in the future.

Employment case law update

Disability legislation applies if impairment could lead to disability, say EAT

The Equality Act makes it unlawful to treat someone with a disability less favourably than others in

similar circumstances.

What if they have a minor impairment that doesn't affect their day-to-day activities, but you're

worried it might become worse and then amount to a disability and affect their ability to do the job?

Is it safer to dismiss them at this stage so you can avoid having to grapple with the Equality Act?

The Employment Appeal Tribunal (EAT) recently considered this issue. A police officer had

applied to transfer to another role. She had a hearing impairment that did not affect daily activities.

The constabulary was worried that it might become worse and therefore rejected her application.

The EAT decided that this was unlawful discrimination. How did they reach that conclusion?

Progressive conditions

Disability is defined as an impairment that has a substantial and long-term effect on the ability to

carry out daily activities. However, the Equality Act explicitly says that if a condition doesn't yet

have a substantial effect but is likely to get worse so that it does, that's considered to be a disability.

Perceived disability discrimination

The Equality Act also protects people who are perceived to have the quality in question. For

example, it would be sexual orientation discrimination to treat someone less favourably than others

because you incorrectly think they are homosexual.

The reasoning in this recent case

This decision was based on these two points. The employer perceived the employee to have a

progressive condition, and treated her less favourably for that reason.

We sometimes see this in relation to stress: an employer dismisses before the condition becomes

depression. This decision means that's unlawful.

What this means for you

We understand that the constabulary's appealing to the Court of Appeal, so the law on this may be

refined. However, for now you should assume this is the law. In other words, you can't avoid the

Equality Act by acting quickly, before a condition gets worse and amounts to a disability.

How we can help

If you think that an employee or an applicant may have a disability, you're expected to make

reasonable adjustments so that they can continue in their position. Our Employee Handbook and in

particular its Equal opportunities policy cover reasonable adjustments.

This Blog features legal content from Epoq Legal services, creators of ARAG Business Legal Services. 

 

Here today, gone tomorrow

Following last month’s news of the collapse of CBL Insurance and the subsequent failure of Denmark’s Alpha Insurance, Head of Sales Andy Talbot, considers where the next legal expenses underwriting failure may occur.

In 2016, it was AU Insurance Services. Last summer, it was Elite Insurance Company. Already in 2018, New Zealand’s CBL Insurance Limited has collapsed leaving Alpha Insurance A/S in solvent liquidation and run-off.

Often, it seems, these failures impacting the legal expenses sector get associated with the ATE market, somehow remote from the majority of brokers. But most legal expenses underwriters, wherever they are based, will have feet in both ATE and BTE camps.

Alpha is a case in point, having underwritten numerous motor legal protection and other policies for brokers around the country, as well as some ATE business.

The precise causes and circumstances of these failures (and the several others that have occurred in between them) may be very different, but they have all left brokers, other intermediaries and their clients in the lurch.

In most cases, clients are unlikely to be impacted if a change of underwriter is forced on their insurance provider. Some consolation for brokers who have to go back to the market, find a new underwriter or product and undertake all the subsequent work that such failures inevitably trigger. 

What is troubling is the frequency with which such failures seem to be occurring.

The legal expenses insurance market has not been an easy one in recent years. Increased regulation, LASPO, numerous other legislative changes and even the succession of IPT rate increases have all put pressure on smaller LEI providers.

Some underwriters have also been more vulnerable to the impact of continued uncertainty over EEA passporting rules, resulting from the Brexit vote, and there are likely to be more legislative changes to come. Proposals to change the way “whiplash” claims are handled and raise small claims court limits could seriously undermine the business models of some LEI providers and trouble their underwriters.

Brokers have good reason to be cautious. Alpha Insurance is only the latest underwriter to exit the legal expenses market. It is highly unlikely to be the last.

How and when the next legal expenses underwriter will leave the market is inevitably hard to predict, but brokers owe it to themselves at least, to minimise the risk of finding themselves in a similar situation over the coming months.

Very few law firms will have the knowledge of insurance markets that most brokers do, so it may be hard for them to understand and calculate the risk. Brokers, on the other hand, should be much more adept at asking the right sort of questions, not just of their immediate provider but the ultimate underwriter too.

Who is this policy underwritten by? Where are they based? Who regulates them and what sort of scrutiny do they come under? Are they independently rated by a credible agency? How much experience do they have writing this sort of business?

Thankfully, it seems that Alpha’s departure and run-off will, like Elite’s before it, be orderly. The underwriter appears solvent and seems capable of meeting its obligations.

Next time, we may not be so lucky.

Care Providers & the National Minimum Wage

This blog is aimed at Care Provider Legal Solutions Policyholders and agents who specialise in the care sector. I would like to share with you a Government briefing document that summarises recent developments relating to payment of the national minimum wage for sleep-in care duties. Here is a link to the document and my summary is below. 

Back ground

The Royal Mencap Society v Tomlinson-Blake case considered whether sleeping during a shift should be deemed as “work” for the purpose of applying National Minimum Wage (NMW) regulations.

In April 2017 the Employment Appeal Tribunal handed down judgment which, held that, in some cases, carers who are required to be present throughout the night will be entitled to the NMW whether awake or asleep. The briefing document summarises this case and others. 

Consequences of breaching NMW

To obtain backdated wages if underpaid, an employee can take a claim to the employment tribunal or the country court. If a worker is successful in his NMW claim, he could be owed up to six years’ back pay. HMRC enforces the NMW on behalf of the Department for Business, Energy and Industrial Strategy (BEIS). If HMRC finds that an employer has underpaid worker(s), it will fine the employer, require it to provide back pay to affected workers, and name and shame them via a press release.

Relief for social care employers

Given the potential impact on the social care sector the HMRC has, until 31 March 2019, modified its approach to enforcement by launching the Social Care Compliance Scheme (SCCS). Subject to certain criteria, employers who have opted into the scheme can have financial penalties in relation to under payment of sleep-in shifts prior to 26 July 2017 waived and will escape “public naming and shaming”.  Details of the SCCS scheme are here. https://www.gov.uk/guidance/tell-hmrc-if-youve-underpaid-national-minimum-wage-in-the-social-care-sector
Nothing in the scheme prevents individual workers taking their own legal action (whether in the Employment Tribunal or Court) to recover arrears owing to them.

Staying compliant

No single factor is determinative and the weight each factor carries (if any) will vary according to the facts of the particular case however a key point is that “where specific hours at a particular place are required, upon the pain of discipline if they are not spent at that place, and the worker is at the disposal of the employer during that period, it will normally constitute time work”.
The briefing note sets out potentially relevant factors in determining whether a person is working by being present. Full enforcement guidance is here.   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/656568/nmw-enforcement-beis_-_policy_doc_-_full_vFINAL__3_.pdf

ARAG Legal Services website - Free Business Bulletins

If your clients/policyholders have an ARAG policy and have not yet registered to use > araglegal.co.uk , they could be missing out on lots of useful information.
In addition to maintaining the law guide and creating online legal documents for clients to customise to their own circumstances, the team behind our Legal Services website also publish topical Business Bulletins. Once registered with the site, customers can opt- in to receive these.

General Data Protection Regulations

For this first blog I’ve extracted some content about the General Data Protection Regulations from a recent business bulletin. Why not send this to clients with a reminder of their voucher code and encourage them to register on the Business Legal Services website to receive information like this in the future.

Introduction

The Data Protection Act 2018 will implement provisions of the General Data Protection Regulations (GDPR) into domestic law in the UK. The Bill is currently bobbing along through Parliament and will be passed into law to take effect from 25 May 2018. 

GDPR: how to demonstrate accountability

GDPR imposes an obligation on those who control other people's personal data. Data controllers must be able to demonstrate compliance with 6 essential principles.

In summary, these principles are that personal data must be:

1. processed lawfully, fairly and transparently;

2. collected only for specified legitimate purposes;

3. adequate and relevant, but limited to what's necessary for your stated purpose for processing it;

4. accurate and kept up to date;

5. kept for no longer than necessary for the stated purpose;

6. processed in a way that is secure.

What does it mean, in practice, to be able to demonstrate compliance with these principles?

Most importantly, you must have appropriate data protection policies and procedures. You may be a

very fair person and only ever process data lawfully, fairly and transparently (as required by the

GDPR). But if you don't have policies and procedures, you won't be able to demonstrate that.

You'll also have to be able to demonstrate that you correctly implement your policies and procedures and that you have effective compliance measures endorsed by the highest level of management in your business. You'll also have to provide training so that all staff understand what it means to be compliant with data protection principles, and you'll need policies for dealing with poor compliance and data breaches.

The Information Commissioner's Office says that, where appropriate, appointing a data protection officer (DPO) is necessary for demonstrating accountability. Businesses must appoint a DPO if their core activities include: regular and systematic monitoring of individuals on a large scale; or large-scale processing of information relating to criminal offences or 'special categories' – i.e. sensitive information on 8 specific topics, such as racial origin or political beliefs.

We expect most SMEs will not have to appoint a DPO. However, we'd suggest you choose someone to oversee data protection anyway, to help you demonstrate accountability.

Article 30 of the GDPR describes the records of data processing activities that you must keep. For

example, the record must include your name and contact details, the purposes of the processing and

any recipients of the processing. In effect, this amounts to a data protection audit.

If you employ fewer than 250 employees, you might not have to comply with Article 30. However,

the duty to be able to demonstrate compliance applies to all businesses that control data, so if your

business does then we'd suggest you conduct a data protection audit.

What this means for you

If your business controls personal information you must act fairly and in line with the principles of the GDPR. You must also be able to demonstrate this. How you do that will depend on your business and the personal information you control. At the very least, appropriate data protection policies and procedures will help. You should, however, also conduct an audit of the personal information that your business receives and processes.

How we can help

Our Privacy and cookie policy for a website will help if you have a website through which you

capture customer information. We also have an Employee handbook that instructs staff about the

data protection principles and their obligations. Both documents are compliant with the current Data Protection Act, but we're currently working to update them for the GDPR.

This Blog features legal content from Epoq Legal services, creators of ARAG Business Legal Services. 

Watch out for my second blog with some more extracts for you/your clients on employment law updates.