In this newsletter we will look at:
- Consent under the General Data Protection Regulation
- The New National Minimum Wage figures
- The potential impact of the Chancellor's recent u-turn
General Data Protection Regulation (GDPR) & Consent
Business owners and employers are well aware that employees must consent to the processing of their personal data.
The GDPR was adopted in April 2016 and everyone has 2 years to get into shape as the law will be enforced in May 2018.
GDPR will apply to businesses that process personal data in Europe. It will also apply to companies outside of Europe that have a significant client base or a large number of employees in Europe. This short note is a discussion on the issue of obtaining a person’s consent.
There must be real consent, freely given in relation to the processing of personal data, whether it is a client’s data or an employee. The new regulations place a significant emphasis on freely given consent.
In your business you will have a standard contract. Usually at the end the individual concerned simply executes the agreement and consent to everything including the processing of their data. Online, it is all tick boxes.
GDPR states that you will need to have a separate consent form in relation to the processing of the data. Similar to your ‘cooling off’ form which naturally is separate from your main contract.
Ticking boxes on a web page, or silence (implied consent if you continue to process the information for the person) is not going to be consent under the new regulations.
Consent must be intelligible, informed and unambiguous. Thus if you provide a service online, even online to children, consent to processing data must be clearly given.
Consent must be granular for distinct processes (just imagine!).
You must let the data subject know that they have a right to revoke your ability to processing their data at any time.
If the consent will cover several processes, you must let the client know the persons involved in the processing. They must be named. So for example if I am completing a divorce petition. Then my consent form to be executed by the client in theory will mean, I need to get consent for me to prepare the petition as I am processing the personal data. When this form is sent to the court. It will be processed by the court, so my consent form in theory should state that there will be processing by the court. The court will need to be named. If I was sending a barrister to court to argue about the finances, the form would need to consent to the barristers’ chambers processing the personal data so that the client can representation at court. So the barrister’s chamber will need to be named.
The rationale behind the new consent is to give customers and staff more control.
Consent forms therefore must be drawn up in plain English to ensure compliance with the new rules.
Consent obtained must then be documented.
National Minimum Wage
The National Minimum Wage (and National Living Wage) rates will increase from 1 April.
The National Minimum Wage is defined as the minimum wage per hour a worker is entitled to under the law.
National Living Wage was introduced by the government on 1 April 2016 and is defined as the living wage for all working people over the age of 25.
The new rates from
- £7.50 per hour - 25 years old and over
- £7.05 per hour - 21-24 years old
- £5.60 per hour - 18-20 years old
- £4.05 per hour - 16-17 years old
- £3.50 for apprentices under 19 or 19 or over who are in the first year of apprenticeship.
If an employer provides a worker with living accommodation, the maximum deduction from the National Minimum Wage or National Living Wage which can be made will be £6.40 per day.
Phillip Hammond’s NI U-turn may be a huge problem for some employers
In the recent budget, the Chancellor announced that he was going to increase National Insurance (NI) contributions to be paid by the self-employed by 2%. This would impact 2.5 million people. His aim was to raise £2bn. This aspect of the budget created mayhem as you know, there were a few bad headlines and tory backbenchers screaming Mr Hammond was in breach, it is alleged, of a manifesto promise not to raise taxes.
In order to avoid a backbenchers revolt; after all we have Brexit to think about, the Chancellor Phillip Hammond did a complete u-turn and scrapped the NI increase to the delight of the self-employed.
The Chancellor must however raise funds to compensate for the loss of revenue because of the U-turn. The best way to deal with it surely is to go after those employers who use or exploit the false/ bogus self-employed. The staff are forced to be self-employed because this saves the employer money, holiday pay, sick pay etc. The industries that have a tendency to do this are the gig economy, construction industry, transport and private social care firms.
In 2015, the CAB suggested that there were approximately 460,000 bogus self-employed[i]
It would be prudent therefore if you have contractors working for you that you make sure they are truly self-employed. You do not want to be in the position where a Judges makes an order to the effect that the staff in question are employed by you; with all the associated risks of the Inland Revenue chasing you for money.