The General Data Protection Regulation (2016/679 EU) coming into force in May 2018 – why should you prepare your business?

The new General Data Protection Regulation (GDPR) will apply from 25 May 2018 and will supersede the UK Data Protection Act 1998. The GDPR expands the rights of individuals concerning the collection and processing of their personal information by third parties.

As such additional obligations to protect personal information were put on organisations. This means, for instance, that employers should review their existing privacy notices and consent clauses as usually included in employment contracts. Not only the new penalty regime which empowers national supervisory authorities to issue fines of up to EUR 20 million, or 4% of an organisation’s annual global turnover for certain data protection infringements should be reason enough to prepare well in advance and carefully to avoid any non-compliance with the GDPR.

Non-competition clauses in employment agreements

Generally, restrictive covenant clauses are void after employment unless they are shown to be reasonable. The courts will allow them if they are worded to give an employer only the protection that may be considered reasonable to protect their business. Such reasons can be: trade secrets, trade connections – customer/

clients and (to a lesser extent) suppliers, stability of the employer’s workforce.

Procedure for contesting dismissal by the employer with English employment contracts

An employee can assert various claims after dismissal, depending on the particular circumstances.

The employee may object that the dismissal was a breach of contract (“wrongful dismissal”) and make a claim for resulting financial loss. Simultaneously or alternatively, the employee may claim that there were no grounds for dismissal (“unfair dismissal”) if certain preconditions, such as a specific period of validity of the employment contract, are fulfilled.

If a claim for unfair dismissal is successful, the employee will be awarded compensation, in the form of a basic award of compensation or an award to compensate actual financial loss. If the dismissal is a result of redundancy, the employee can claim for the statutory redundancy payment.

“Constructive Dismissal” – What is it?

“Constructive dismissal” is the term used when an employee terminates his contract after the employer has breached a term of the employment contract. The employee must prove the employer has breached a term of the contract, that it was a unilateral breach and that the employee terminated his contract due to this breach by the employer. The employer’s conduct must be so serious that the employee is no longer able to keep to the employment contract. The employee must also terminate his contract within a short time of the wrongful conduct by the employer.

Where is the employee’s place of work?

According to the EC Regulation No. 44/2001 (“Brussels 1”), Article 19 No. 2 a) provides that, with individual employment contracts, an employer can also be taken to court in the place where the employee normally works or most recently used to work.

Determination of the usual place of work may be difficult if the employee normally works at various locations. The European Court of Justice established, in case C-29/10, how the employee’s place of work is determined. Although this decision on interpretation was valid for the Rome 1 Regulation, the result also has to be applied to Brussels 1 based on the principle of uniform interpretation. This decision established that, to give as broad an interpretation as possible for the protection of the employee, it depends on the location where the employee mainly fulfils his obligations towards his employer.

So in cases where work is carried out at various locations, it depends on where the employee works most.