How much data can I gather?
You also need to consider other aspects of data protection.
Be proportionate – only gather and use Covid-19 data where you need to.
Keep data to a minimum – you shouldn’t gather more data than you need. You need to know someone has Covid-19 but you don’t need to know all their symptoms. Data minimisation also applies to who gets access to the data. It’s unlikely that a spreadsheet, accessible to everyone updating them on the health status of all employees, would be appropriate. Data should be shared on a need to know basis. You need to balance the privacy of individuals against your duty of care to be responsible with regards to the data of your employees, visitors, customers and suppliers.
Keep it up to date – make sure you update data. People’s health status will change and if you keep a record of this, you need to make sure it is accurate and up to date (although this doesn’t mean you should batter individuals with constant requests for updates on health status. Again, be proportionate).
Identify individuals only when you need to – although you will need to know who has Covid-19, that doesn’t mean you need to tell everyone in the organisation. As soon as you can, you should remove personal data from any information you gather. For example, you might want to update employees on the health status of their fellow employees but you probably don’t need to name individuals and even if you feel it is necessary, you should keep the information you provide to a minimum. Removing personal identifiers in a document is also a good data security technique.
Keep the Covid-19 health data secure – Covid-19 data will be special category data and deemed high risk. This means that if you have a breach of this data you will need to notify it to the ICO. A breach could happen by someone losing a print-out of the names of Covid-19 employees, customers or visitors. It could also happen if you set access rights to lists of Covid-19 sufferers open to more people than need to know the information. The risk of ICO enforcement action increases with the potential harm the disclosure could cause. Although the ICO has indicated that it will be understanding about the impact of Covid-19 on normal operations, this doesn’t mean that they will not prosecute you if the breach is sufficiently serious.
Destroy the data once you don’t need it – Finally, of course, make sure that you delete data at the end of your needs. This might last longer than the pandemic, for example if you have an insurance claim or ongoing litigation. If you do need to keep it, consider whether or not you can delete some of the data to minimise what you hold.
Related FAQs
No. You should always treat employees consistently and fairly, but this doesn’t mean treating them all the same, or applying the same requirements. For those employees who have been homeworking and doing so without any problems, then they should be allowed to continue to do so.
We would anticipate that the vast majority, if not all, businesses will be approaching the return on a phased basis, which inevitably means some employees returning to work sooner than others. In reality then, you aren’t treating everyone the same, but try to be fair and consistent; you need to do what works best from a business perspective, but can you rotate people, require them to come in at different times etc. Where people perceive that the planned return is being worked out fairly they are far more likely to buy into this, which will help avoid resentments building up between colleagues.
Some employers falling into the third group of organisations described above could understandably feel aggrieved that on the first reading of the guidance they are not able to furlough employees and rely on the Government scheme. Many publicly funded organisations that are not public sector employers, receive a package of public funding with little expectation on how that funding is used or applied, other than broadly for it to be used in providing the services it is contracted to deliver. Also, several publicly funded organisations have many different income streams and the element of funding that is received from the public purse can be only an element of their operating costs.
Unfortunately there is still no clear guidance on when employers falling into the third category identified above can use the scheme. The only reference in the guidance on this states that where organisations are not “primarily funded” from the public purse and whose staff cannot be redeployed to assist with the coronavirus response, the scheme might be appropriate to be used for some staff. This seems to suggest that where an employing organisation is not wholly or mainly funded by public funding and staff cannot be redeployed to work in areas in the effort to combat coronavirus, then it would be appropriate for the employer to access the scheme.
If considering applying for grants under the scheme a sensible approach would be to look at the combined total of your public funding and payments under the scheme and make sure it will not represent more than 100% of the level of total income you would have expected to receive during this period in a non-Covid scenario.
Local Authorities are expected to maintain support to suppliers and this should be considered:
Specialist healthcare lawyers from Ward Hadaway ran a free webinar looking at the practical and legal considerations if required to treat healthcare workers from a BAME background or other vulnerable groups differently in the fight against the Covid-19 pandemic.
A new Permitted Development Right has been introduced providing restaurants and cafes, drinking establishments with expanded food provision to temporarily provide takeaway food. The new right came into force on 24 March 2020 and expires on 23 March 2021. The right is subject to three conditions:
- The developer must notify the local planning authority if the building and any land within its curtilage is being used, or will be used, for the provision of takeaway food at any time during the relevant period
- Change of use to the provision of takeaway food under the Right, does not affect the use class which the building and any land within its curtilage had before the change of use
- If the developer changes use to the provision of takeaway food under the Right, the use of the building and any land within its curtilage reverts to its previous lawful use when the Right expires or, if earlier, when the developer ceases to provide takeaway food.
Alcohol will still be subject to the same licensing requirements. At this stage, it is not clear how the Right will interact with any current planning conditions placed on an establishment. Enforcement however remains discretionary. A link to Statutory Instrument 2020 No.330 is below.
The obvious option to reduce the cost of your workforce is redundancy. However, that also reduces the number of employees and therefore your capacity.