Outsourced workers and collective bargaining

In IWGB & Cordant Security Limited TUR1/1026 (2017) and IWGB & University of London TUR1/1027 (2017), the Independent Workers Union of Great Britain (the Union) sought recognition from the Central Arbitration Committee (the CAC), for outsourced workers employed by Cordant Security to be able collectively to bargain directly with their ‘de facto employer’, an HEI. In this claim – described by commentators as ‘novel’ – the Union argued that there was joint employment between Cordant and the HEI, and the HEI ‘substantially determined’ the workers’ rights.  The application against Cordant was rejected as Unison was already recognised as a union.  The application against the HEI was also rejected by the CAC, on the basis that there was no contract between the outsourced workers and the HEI as required by the definition of ‘worker’ under s. 296 of the Trade Union and Labour Relations (Consolidation) Act 1992.  It was stated in the decision: ‘It follows that, for the Union’s case to succeed, there must still be a contract between each individual worker in the bargaining unit on the one hand and the University on the other hand. That is an absolute requirement. However, there is no such contract in this case. On the face of it, that is fatal to the Union’s application.’ The CAC also stated: ‘An acceptance that this Read Full Article…

Education sector and charity sector FAQs

The Data Protection Bill is likely to come into force on 25 May 2018.  It implements the EU General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679).  The new legislation has special provisions for ‘public authorities’ and most HEIs will fall into this category. The Information Commissioner’s Office has published ‘GDPR: FAQs for the education sector’. It covers topics such as: Are we a public authority under GDPR? Do I need to appoint a data protection officer (DPO)? What lawful bases of processing should I use? Is parental consent always required when collecting or processing children’s personal data? How do I know if the consent I have for marketing under the DPA is good enough for the GDPR? Will data portability apply to universities and will there be any technical guidance on how to comply with this? Unfortunately, the FAQs are not as tailored to the education sector as they could have been and remain fairly general in places.  Readers may wish to keep the ICO Education sector website under review as it could well be updated with further resources. The Information Commissioner’s Office has also published FAQs for charities.  These FAQs appear to be even more general in nature than the education sector FAQs.

Personal data and exam scripts

In the ECJ case of Nowak v Data Protection Commissioner (Case C-434/16) EU:C:2017:994, 20 December 2017 it has been ruled that personal data under the Data Protection Directive can include a candidate’s handwritten exam script and the examiner’s comments on it.  It could, therefore, be recovered by the student as a subject access request. Mr Nowak was a trainee accountant who had failed four times an examination set by Chartered Accountants Ireland (CAI).  He made a data access request to obtain all personal data relating to him held by the CAI.  Documentation was sent to him in response, but his corrected examination script was withheld on the basis that it did not contain personal data.  Mr Nowak challenged this decision before the Data Protection Commissioner (Ireland), but was refused again because the information contained therein did not constitute personal data. Mr Nowak sought to make a judicial challenge to this position, which was held inadmissible by each of the Circuit Court, High Court, and Court of Appeal.  Finally, the Supreme Court of Ireland, although deciding he was able to bring such an action, referred to the ECJ the matter of whether an examination script can constitute personal data.  The ECJ held that: a candidate at a professional examination is a natural person who can be identified, either directly, through his name, Read Full Article…