Employer Resources Newsletter - October 2021

Many employees across various sectors, including the non-profit, are continuing to work remotely, either fully or as part of a hybrid model.

Given this situation, employees will have access to or will have confidential or sensitive information on devices outside of the normal workplace. This is particularly applicable to those in the non-profit sector who are working with potentially vulnerable people out in the community. And, quite often, employees are using personal devices for work purposes.

Accountability is one of the key principles of GDPR and requires that organisations put appropriate measures in place to protect any data they collect and store. And, organisations must be able to demonstrate that these measures are effective. Organisations need to be able to demonstrate that they are compliant with GDPR legislation. As such, they need to be able to show adequate documentation on what personal data is processed, what purpose the data is being used for and for how long as well as showing the processes and procedures aimed at avoid data breaches.

When collecting, storing or using personal information, that data may be exposed to a number of risks. It is crucially important that your non-profit organisation does everything it can to ensure that data is managed legally, securely and efficiently to ensure compliance with Data Protection; particularly when the information is outside the workplace.

Quite often the risk profile of the data processed by those in the non-profit sector is considered high-risk because it will often relate to health, financial or other serious issues affecting clients. So it is important that you carry out a risk assessment to help improve awareness among employees about potential data breaches and also highlight what effective measures need to be taken to ensure the safety of that data.

There is some simple, straightforward guidance for employees who are working remotely and accessing and/ or processing sensitive data.

Using devices such as laptops and tablets:

• Make sure that all devices have the necessary and latest updates, including software/antivirus updates.
• Ensure your employees store computers, laptops or devices in a safe location – remind employees that if they are using the device in public be mindful of who else can see the screen and do not walk away from the device with the screen open.
• Take extra care that devices, such as USBs, phones, laptops, or tablets, are not lost or misplaced. If the device is lost, ensure the employee reports it immediately; this will allow steps to be taken to remotely delete information if possible.
• Make sure devices are turned off, locked, or stored carefully when not in use. And, remind employees not to allow any family to use the device for any reason.
• Use effective access controls (such as multi-factor authentication and strong passwords) and, where available, encryption to restrict access to the device, and to reduce the risk if a device is stolen or misplaced.

Use of emails:

• Ensure your organisation has appropriate email policies in place outlining acceptable use of work emails.
• Avoid employees using their personal email accounts for work purposes, particularly if sensitive information is being included or attached. If the employee has no other option but to use personal email, then ensure any information is encrypted.
• Again, important if including personal data, double check the recipient’s address to make sure it is going to the intended person.

Use of paper-based files

• Data protection also applies to paper-based files, which are very common among those working within the community. So, it is important to reiterate the importance of secure storage of paper files with your employees. And, never to misplace or leave behind in a public place.
• Only use paper-based files outside the workplace if absolutely necessary, particularly if they contain sensitive or personal information.
• And, if files are being removed from the workplace, take note of what is being taken, when and by whom. It is also important that unauthorised copies are not taken from the workplace without permission.

While some of the above advice may seem obvious, quite often it can be overlooked for that very reason. It is prudent for those working in the non-profit sector to be regularly reminded of their responsibilities under data protection and, if necessary, undergo training on an annual basis.

Court recommends Charity to pay a higher on-call rate per weekend to Workers

This month’s case relates to an issue that arose in an Irish charity that paid a lower weekend on-call allowance to two employees compared with two others. It was submitted that the payment of a lesser amount to two of the four for doing the same work is inequitable and unreasonable.

Background

The within dispute relates to a claim on behalf of two Nurse Managers employed by a Charity based in Munster. The nurse managers sought payment of a weekend on-call allowance at the same rate as paid to two other colleagues employed by the charity. The claim was retrospective to July 2019. The nurse managers were required to be on call for sixty-four hours (Friday to Monday) on ten to twelve weekends per year. They were paid an on-call allowance of €170.23 per weekend. However, their colleagues were paid an allowance of €302.00 per weekend on call.

The latter payment was introduced by the charity in July 2019 by way of an interim resolution of a local dispute pending the outcome of national discussions in relation to payment of on-call pay rates for nursing staff in the Intellectual Disability sector. In another case, dated April 2017, the Labour Court had recommended that the payment of such allowances “be considered as a national matter where comprehensive information can be considered or alternatively that the matter be considered locally when the parties have established clarity as regards arrangements applying across the sector generally and to nurse managers in particular.” The dispute that culminated in that particular case concerned four Nurse Managers employed at the time by the charity. As of July 2019 – when the local arrangement was agreed – two of the four original nurse managers employed by the charity had left their employment. The charity applied the agreed increased rate only to the remaining two nurse managers who were party to the dispute and not to the ones who are party to the within dispute.

On 11 May 2020, the nurse managers referred this dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969, and agreed to be bound by the Court's Recommendation. A Labour Court hearing took place on 15th October 2020.

Union Arguments

The Union submitted that each of the four Nurse Managers employed by the Charity are compelled by their contract of employment to undertake on-call duty in addition to their contracted basic hours, at least one full weekend every fourth weekend. Each Nurse Manager has full and equal responsibility when on call. The Union further submitted that the payment of a lesser amount to two of the four for doing the same work is inequitable and unreasonable.

Charity Arguments

The charity submitted that concession of the claim could create a costly and unwarranted precedent across their specific Sector in circumstances where there is no nationally agreed Department of Health/HSE rate for Nurse Managers who provide an on-call service. It further submitted that the local arrangement entered into in 2019 is an unapproved payment that was introduced to ensure service cover. The charity is an independent Section 38 entity and has been advised by the HSE that no additional funding will be forthcoming to cover the cost of the within claim (which is cost-increasing) if the claim is conceded. Finally, it submitted that the payment made to the nurse managers for the on-call service they provided is fair and reasonable when benchmarked against comparable service providers.

Recommendation

The Court recommended payment of the higher on-call rate of €302.00 per weekend to the nurse managers with effect from the date of its Recommendation. The Court did not recommend any retrospective payment.

Our Commentary

When two or more workers are doing the same job yet earning different pay this is known as pay disparity. This case is critical example where the employer failed to give a legitimate reason for treating the compensation of the workers differently.

It is important for employers to consider education and experience as a reason for pay disparity. For example, one worker may hold a degree whilst another doesn’t. This could justify a pay difference.

Following the recent Budget 2022, there are a number of impacts that both employers and employees should be aware of...

Increased Minimum Wage

From 1 January 2022, the Minimum Wage will increase by 30cent to €10.50 per hour. This follows a 10cent increase in January this year. This is still some way off the Living Wage, which is currently €12.30 per hour but is not connected to the Minimum Wage.

Recently, the Living Wage Technical Group recommended that the Living Wage should increase to €12.90, a rise of 60cent. The Living Wage is intended to provide a benchmark that should provide an acceptable minimum standard of living for workers in Ireland.

Tax Deduction for Remote Workers

Employees who continue to work remotely will see an income tax deduction of 30% of the costs of vouched expenses for electricity, heating costs and broadband. This reenforces the Government’s commitment to remote working for Irish employees.

Pandemic Supports for Employers

It was confirmed that Employment Wage Subsidy Scheme (EWSS) will be extended through to 30 April 2022. There are no changes in the level of payments in October or November.

However, for December, January and February, there will be a two-rate structure introduced; €203 and €151.50. In March 2022, a rate of €100 will apply.

The EWSS closes to new entrants on 1 January 2022.