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Home / News and Insights / Blogs / Employment Law / 294: And finally a look forward to what’s happening in employment news for March 2021

The Information Commissioner’s Office (ICO) has published a blog setting out key points for organisations to consider when using algorithms in hiring decisions. This highlights that the data fed into Artificial Intelligence (AI) systems is itself influenced by human prejudices, leading to bias and discrimination in decision-making based on algorithms which is hard to detect. All algorithms must comply with the data protection principle of fairness. Employers should therefore consider at the start of the AI lifecycle whether using algorithms is a necessary and proportionate means of addressing discriminatory hiring practices. If this is satisfied, employers should also document how they will sufficiently mitigate bias and discrimination and put appropriate safeguards in place to achieve this. The ICO also emphasises that employers must consider data protection and equalities law separately when developing systems using algorithms. As the ICO points out, compliance with data protection law does not guarantee compliance with equality law. For example, appropriate steps must be taken to prevent discrimination when processing personal data for profiling and automated decision-making. Using solely automated decisions for hiring purposes in the private sector is likely to be illegal under the General Data Protection Regulations (GDPR). Despite these problems, the ICO concludes that algorithms have the capacity to address bias and discrimination and improve employers’ decision-making. Encouragingly, technology is now being developed to address the inherent problems of automation bias, including new algorithms to detect discrimination in the early stages of a system’s development.

The Government Equalities Office has published a number of new guidance documents on gender pay gap reporting. These cover a range of issues employers may face when compiling and publishing their gender pay gap reports, including which organisations need to report, how to gather data, making the necessary calculations, and producing the reports and supporting narratives. There is also a template for publication of the report. Following the one-off suspension for the 2019 reporting period, employers with 250 or more employees are required to publish their 2020 gender pay gap data by 4 April 2021, or 30 March 2021 for public sector employers.

The Ministry of Justice has published the Employment Tribunal quarterly statistics for 1 July to 30 September 2020. These show that the number of Employment Tribunal claims has risen to its highest level since 2013/2014. Single claim receipts rose to 11,000 (a 13% increase from the same quarter in 2019) and multiple claim receipts rose to 19,000 (a 24% increase). It is anticipated that this trend is likely to continue, possibly accelerating when the furlough scheme ends. The pandemic has also resulted in an increase in the Tribunal backlog. There has been a 22% increase in outstanding caseload for single claims, which are taking on average 39 weeks to be dealt with, five weeks more than during the same quarter in 2019. Multiple claims are taking on average 95 weeks to be disposed of. Overall, the Employment Tribunal disposed of 9,200 claims during this period, which is 39% down on the same period in 2019.

On 10 December 2020, the Equalities and Human Rights Commission (EHRC) launched an updated Human Rights Tracker to monitor human rights compliance. This will track how well the UK and Welsh governments are implementing their obligations under seven UN human rights treaties, including the European Convention on Human Rights. As well as being able to monitor compliance with international human rights standards, the public will also be able to track progress across key areas impacted by the pandemic, including reductions to social care provision, the number of children living in poverty and the rights of disabled people. The EHRC is advising on improvements to policy and legal protection in these areas, and on the UK’s international and domestic human rights obligations.

The Government has launched an independent review of the Human Rights Act 1998. This will consider the relationship between UK courts and the European Court of Human Rights (ECtHR) and how the duty to take account of ECtHR case law has been applied in practice. It will also look at the impact of the Human Rights Act on the relationship between the judiciary, executive and Parliament. The Government has confirmed that the UK remains committed to the European Convention on Human Rights, and that the review is looking at the structural framework rather than the rights themselves. The review is due to report on its recommendations in summer 2021.

The Department of Work and Pensions has published its proposed increases to statutory benefit rates for 2021/22. These normally take effect on the first Sunday in April, which would be 4 April 2021. The weekly rate of statutory sick pay will be £96.35 (up from £95.85). Statutory maternity pay, paternity pay and shared parental pay, and maternity allowance, will increase to £151.97 per week (up from £151.20). Rates will be confirmed once an Order has been made.

In the six months to 30 September 2020, the Financial Conduct Authority received 47 complaints about policies implemented by employers in response to the pandemic. Many whistleblowers expressed concern about insufficient PPE and a failure by their employers to implement proper social distancing guidelines. The complaints also revealed that some employers have also been miscategorising people as ‘key workers’, presumably so that they can be required to attend the workplace.

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