Do you update and maintain your data protection policies? Have you reviewed your employment contracts recently? Specialist HR and Employment Solicitor Sarah Buxton, explains why there are some areas of practice HR that should be reviewed regularly for your own protection.
One of the first areas I suggest practices look at regularly is their data protection policy. When Britain left the EU there was a change in the legislation and I find that a lot of policies still refer to European legislation, which is now incorrect. In accordance with that, the length of time for which practices hold data needs to be reviewed.
This is particularly important during the recruitment process as often practices will be sent CVs which they may want to keep for a certain period of time, especially if the CV looks good. They might not be actively recruiting at that time but could be in six months or so. However, the candidate needs to be informed that the practice is keeping their data, and their consent gained for the practice to do so. It’s not OK to keep someone’s data without their consent.
Retention periods
Also, with regards to retaining data it’s worth bearing in mind that the employment tribunals are very busy resulting in delays to cases coming before them. This means keeping data or HR files for 6 or 12 months probably is no longer sufficiently long enough. Also, if, as suggested in the governments’ Employment Rights Bill, The Fair Work Agency comes in, we will need to keep data for a substantial period of time, starting from the recruitment process.
The length of time will vary from practice to practice, but as a rough guide practices will need to hold HR data for a minimum of two years before disposing of it. For self-employed staff you will need to keep it for six years as the employee can bring a breach of contract complaint within a six-year period. So, holding the whole team’s data for six years may make life simpler overall. These records can be digital and do not need to be hard copies.
As there’s no surefire way of predicting whether a former employee will make a claim it’s best to retain the data until the six-year period has elapsed. Otherwise, if you dispose of the files before then and they do make a claim, there will be nothing to support that the practice has done the right thing while they were working there or during the recruitment process.
Notice periods
I also advise my clients to have a good look at the notice periods in their contracts as this will be of help when a vacancy occurs. It will help prevent a panicked recruitment process caused by the fact that a member of staff will be leaving within a month, as that is their notice period. Employment contracts need to be updated to ensure that the notice period aligns what’s happening in your market.
For example, in Central London, a notice period of four weeks might be fine as it’s possible to recruit more quickly there than in other areas. In some rural communities a three-month notice period might be needed as there are likely to be fewer candidates to choose from. Having only a short period of time to recruit a new staff member could result in the wrong person being employed out of a desperate need to fill the vacancy.
Changing employment contracts
Many clients are under the impression it’s difficult to change employment contracts. This is not necessarily the case as it is possible to change anything in an employment contract. If there’s a change in the legislation or in circumstances, such as notice periods, and your contracts need to be changed, you can do so quite easily.
It’s much harder to change fundamental terms, which are things such as salary, holiday entitlement, or any benefits, but generally employment contracts should be updated once a year. Employment law is moving especially quickly at the moment and so you have the right to amend contracts to reflect this. In some employment contracts there are clauses that state the employer will give four weeks’ notice of any changes. So, the employee knows right from the word ‘go’ that their contract could be subject to alteration at some point.
If your practice doesn’t have that clause, as an employer you should give the employee a period of time so they can absorb the change and make sure they’re happy with it and come back with any queries.
Generally, acceptance of a change follows the 80/20 rule. Most employees will sign it as long as you’ve explained what the changes are and why you’re updating the contract. If they’re part of your team, they share the vision and understand the culture and the running of the practice, they’ll be on board with it.
You’ll always get the employees that don’t sign it and put it in a drawer. In which case a different approach may be called for. Quite often employers will negotiate on a contract by offering an extra day’s leave for that year for employees who sign the new version.
There’s nothing wrong with putting a positive spin on things. Generally, the cost of giving everybody an extra day’s annual leave over having a longer notice period is worth it.
Last resort
There is a way to force a change of terms and conditions and that is to fire and rehire. We never advise people to take that route as it has a truly adverse effect on morale. What we really want is for people to be on board with their employer and to encourage them to stay. If an employer does choose to fire and rehire to enforce a change what usually happens is the employee will end up leaving, anyway. Which is a bad result for everyone.
The Labour government has said it wants to stop fire and rehire and intends to make it automatically unfair for an employer to do that. So, in future, an employer will not be able to unilaterally enforce a change. However, it would always be a last resort for us, anyway. After all, ‘it’s better to have 10 willing men than 100 slaves.’
