VIDEO EXPLAINER: Removing healthcare workers from the front line – the dos and don’ts

Employers will be collecting and sharing health information. Health information is sensitive and higher data protection standards apply. Here are a few key pointers.

• Update privacy notices to cover the new collection and sharing of employees’ information and provide these to the workforce. Be transparent and fair.
• Identify the legal basis and condition for use of this information and put any required paperwork in place. The ICO guidance will help. For some conditions such as the employment condition, an Appropriate Policy Document (APD) will be required. The ICO has an APD template.
• Only use the information for the purpose of managing the workforce during the pandemic.
• Only collect or share information if it’s necessary – if it’s a targeted and proportionate way of achieving your purpose.
• Make sure any health information collected and shared is accurate – there may be serious consequences if it’s not.
• Work out how long the information must be kept for. Keep a record of that period and act on it at the appropriate time.
• Security is very important – there may be malicious actors trying to trick employers and employees. Make sure employees know how to identify a genuine NHS Test and Trace contact. Keep the information secure. Use the ICO’s data sharing checklists** and keep a record of the disclosures made and why. Control external disclosures – only certain authorised members of staff should make them.
• Make sure individuals can still exercise their data protection rights – that’s also very important. Keep data protection records up-to-date and ensure any exports of personal information outside the UK are compliant.
• Before introducing employer-led testing like taking temperatures, thermal imaging or other potentially intrusive tests, work out if a data protection impact assessment (DPIA) is required. It will be if the intended processing is ‘high risk’. If it is, then carry out a full DPIA. It will help address the issues systematically and mitigate risks.
• All this demonstrates ‘accountability’ – it shows affected individuals and the ICO that the employer is complying with data protection requirements.

If you need further help, please visit the ICO’s data protection and coronavirus information hub or ask our data protection team.

** Please note that this link is to the ICO’s existing checklists and data sharing code of practice. We will update the link to the ICO’s new checklists after they are published.

On 13 March 2020 the Secretary of State for Housing, Communities and Local Government issued a Written Statement in respect of delivery restrictions.

In this respect, many supermarkets, food retailers and distribution centres in England operate under planning restrictions (conditions and/or obligations) which limit the time and number of deliveries from lorries and other delivery vehicles which can take place particularly at night primarily to protect the residential amenity of nearby residential property.

Key points in the Statement include;

• Given the exceptional challenges facing the UK from the coronavirus, it is vital that deliveries of food, sanitary and other essential products over the coming weeks can be made as quickly and safely as possible, minimising disruption to the supply chains. The likely pressures on driver capacity mean additional flexibility is needed so that retailers can accept deliveries throughout the day and night where necessary.
• That planning enforcement is discretionary and that local planning authorities should act proportionately in responding to suspected breaches of planning control.
• That local planning authorities should not seek to undertake planning enforcement action which would result in unnecessarily restricting deliveries of food and other essential deliveries during this period having regard to their legal obligations.

The Statement acknowledges that the increased frequency of deliveries particularly at night could have a temporary impact on residents. It therefore concludes that the Government will review the need for the flexibility outlined in the Statement after the pressure from the coronavirus has reduced and that it is the intention to withdraw it once the immediate urgency has subsided.

A link to the Written Statement is below.

https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2020-03-13/HCWS159/

You can rotate staff on furlough or flexible furlough.

One option is to make it clear in the letter agreeing to being furloughed that there is an open ended right to rotate and to be able to take them off furlough and bring them back and put them back on.

So the employer reserves the ability to rotate by building into the agreement, but only exercises it if it is permissible.

Rotation is quite key for employers who need to make a temporary reduction to their overheads but want to retain the skills base to call back when work picks up. Having furloughed staff return on a part-time basis may reduce the need to rotate.

It also helps in the employer being able to show that they are treating the workforce as fairly as possible and everyone is taking a reduction. Get in touch if you need help preparing the documentation for furlough that will permit rotation or flexible furlough.

Read more about flexible furlough and how this can be used as part of the CJRS.

The vast majority of disputes settle without ever reaching a final hearing with something in the region of 2-5% of all cases actually ending up in court at a final trial.  So whilst it is very unlikely you would need to attend a court hearing, it is always a possibility.

Although these measures fall short of the level of assurance given to employees both in terms of eligibility for an immediacy of access to payments, they are a vast improvement on the support for self-employed workers that has been put in place until now. Current support includes:

• Access to business interruption loans
• Self-assessment tax payments that were due in July 2020 have been deferred until January 2021
• VAT is deferred until the next quarter
• The introduction of Time to Pay arrangements under which deferrals for HMRC payments can be agreed
• The minimum income floor for universal credit has been suspended which will allow self-employed workers to access the equivalent of Statutory Sick Pay (SSP)
• Universal credit and tax credit payments to increase by £1000 per year