NO SAFE HARBOUR…AND A HAPPY HALLOWEEN!

In Schrems v Data Protection Commission (http://curia.europa.eu/juris/documents.jsf?num=C-362/14), the European Court of Justice looked at whether the Irish Data Protection Commissioners Office had the authority to examine claimant’s concerns regarding the transfer of his personal data under the Safe Harbour Framework from Facebook’s Irish subsidiary to its parent company, Facebook Inc., in the United States of America.

The Court ruled that the Safe Harbour agreement on data transfers from the EU to the US is invalid, as it fails to ensure adequate protection for that data, as required by the Data Protection Directive.  The Court has invited the Irish Data Protection Commissioner to consider suspending the transfer of European Facebook users’ personal data to the US.  The Court also found that national data protection authorities must examine claims from subjects that a transfer of their personal data to a non-EEA country violates their right to privacy even if the country receiving that information has been found by the European Commission to ensure an adequate level of protection for that data.

This judgment has far-reaching consequences.  Thousands of companies share data with US group companies and US-based service provides, such as Microsoft and Google, relying on the Safe Harbour arrangements to enable transfer of that personal data.  Now they will need to consider whether they can continue with this, and develop ways of doing so.  Just as interesting will be the effect the decision has on the flow of data between the EU and the US, and on the relationship between the countries.  UK companies who transfer such data to the US should look to review their data privacy compliance process and ensure that the fundamentals are in place and being followed, all the while eagerly awaiting a new Safe Harbour Framework, which it is hoped will be released sooner rather than later.

Meanwhile, here at LNTV HQ, preparations for Halloween are in full flow.  This does not mean dressing the office in cobwebs and pumpkins, but buying trick or treat chocolates and sweets, eating them, and then returning to the shop for more.  It’s all in the interests of supporting the British confectionary industry you understand 😉

Have a spooky week….

EUROPEAN COURT RULE IN LANDMARK ‘WOOLWORTHS’ REDUNDANCY CASE

After listening to feedback from our lovely readers and subscribers, we’ve been busy this week making some small but fabulous changes to our blog.  We’re updated the ‘ABOUT US’ section, which now contains a fascinating insight into each member of the team, and in some cases we’ve even managed to convince them to let us have a mug shot!  Take a look:

About Us

Outside LNTV HQ, on Thursday 30th April, the European Court of Justice ruled in favour of the UK government in the landmark case of USDAW v Ethel Austin, which became better known as the Woolworths case.

The facts of this case date back to 2008, when between that year and 2010, Woolworths and Ethel Austin went into administration and then liquidation, and as a result were forced to close a large number of retail units throughout the UK.  In excess of 28,000 employees were made redundant.  The Union, USDAW, acted for the affected staff, and brought claims for protective awards of up to 90 days’ pay per employee in relation to both employers’ failure to properly inform and consult with employee representatives.  Staff working in the larger stores received these awards, but over 4,000 staff did not.  Why?  Well the Tribunal held that these 4,000+ staff were not entitled to the awards.  Why?  Well, the Trade Union and Labour Relations (Consolidation) Act 1992 requires collective information and consultation when at least 20 redundancies are proposed at any one establishment.  As these staff worked at retail stores with fewer than 20 employees, and Woolworths and Ethel Austin had treated each store as a separate establishment for the purposes of their consultation obligations, and they did not have a right to be collectively consulted.

Although ‘establishment’ had been read as ‘site’ in the past, USDAW submitted that it should mean the whole employer, which would have the effect of all multi-site employers considering the number of redundancies being proposed across their entire business, not just on a location by location basis.  The Employment Appeal Tribunal agreed with this argument, and in July 2013 held that UK legislation should be re-written so that the establishment where the employees were based became irrelevant.  As a result, employers had to collectively consult whenever there were 20 or more redundancies across their entire business.

The UK government brought an appeal against the Court’s decision.  This was heard by the Court of Appeal in November 2014, and referred to the European Court of Justice.  The ECJ handed down its decision last week, in which it held that the term ‘establishment’ for the purposes of collective redundancy consultation is the entity to which workers made redundant are assigned to carry out their duties, rather than the employer’s business as a whole.  This decision goes against that of the Employment Appeal Tribunal, and allows employers to breath a sigh of relief, as it means that less collective consultation exercises will be triggered, and it will allow those businesses to be more flexible in managing their workforce.

The case still needs to return to the Court of Appeal to apply the judgment in the UK, but as the decision accords with current UK legislation, it is expected that it will be fairly easy for the Court to apply.

It seems the pre-Woolworth days are fast approaching…

http://www.bailii.org/eu/cases/EUECJ/2015/C8014.html