Childcare Counsel - ethnicity pay and data leaks

Q I’ve heard that, similar to gender pay reporting, reporting of ethnicity pay will soon be required…

A This is looking likely, but is not imminent as the Government consultation is ongoing and not set to close until 11 January. It will be several months before the timeframe for introduction and what the reporting might look like is known, and it may be 2020 at the earliest before mandatory reporting takes effect.

The current focus of the consultation is on employers with more than 250 employees, a threshold which would mirror the current provisions regarding gender pay gap reporting. However, one of the areas of consultation is whether the scope should be broadened, for example by it applying to smaller organisations.

There are a number of difficult and potentially sensitive issues connected to ethnicity pay reporting, including precisely what data will be required to be collected. Further, from a practical perspective, there is often reticence among staff to share ethnicity data and to identify themselves with a particular ethnic group, perceiving such questions as intrusive. Policies and procedures will need to be put in place for those organisations caught by the reporting obligations to ensure that the required data can be effectively collated and reported.

It is unlikely Government strategy will rest with ethnicity pay reporting. Further proposals are expected, including the reporting of work opportunities and pay for those with a disability.

Q Can the nursery be liable if one of its employees deliberately leaks data regarding the nursery’s staff?

A Potentially, yes. Even where appropriate technical and organisational measures are in place to protect against unauthorised or unlawful processing of data, this does not automatically relieve employers of responsibility for the acts of its employees.

Where there is a sufficient degree of connection between an employee’s role and the disclosure of data, an employer can be held responsible for that employee’s actions. For example, where a data leak arises by an employee carrying out a role where they are entrusted with confidential data, there is a material risk of liability for the employer.

Employers are therefore well-advised to do all they possibly can to vet and control those with access to confidential data. However, there will always nonetheless remain a risk, and many employers are therefore also insuring against data breaches.

To submit a question, please email hannah.crown@markallengroup.com