345: What’s coming up in employment law?

ICO publish revised data sharing code of practice

On 5 October 2021, the Information Commissioner’s Office (ICO) issued a revised version of its data sharing code of practice, replacing the previous version from 2011. The code provides practical guidance for organisations on how to share personal data in compliance with the Data Protection Act 2018. Key topics include data sharing between controllers, data protection impact assessments, transparency, the lawful basis for processing, accountability, security, and data subject rights. Although breach of the code is not itself an offence, the ICO must take it into account when considering whether an organisation has complied with its data sharing obligations. The code can also be taken into account in court proceedings.

ONS releases annual gender pay gap report

The Office for National Statistics (ONS) has released its annual report on the gender pay gap for 2021. The report is separate from compulsory gender pay gap reporting and covers pay differences by age, region, full and part-time hours, and occupation. The report is based on data collected through the ONS Annual Survey of Hours and Earnings and, due to the impact of the pandemic on wages and hours worked, the report encourages a greater focus on long-term trends rather than year on year changes. In April 2021, the gender pay gap for full-time employees was 7.9%. This continues a downward trend from April 2020, although it was 9% in April 2019. The data indicates that higher earners experience a much larger gender difference in hourly pay than lower-paid employees. There is also a large difference between employees aged over 40, with women aged between 40 and 49 who work full-time experiencing the highest gender pay gap at 12%. Managers, directors and senior officials have experienced the largest fall in gender pay gap since the pre-pandemic April 2019 figure, in particular for those aged 50 and over.

Department for Health and Social Care updates medical exemption from vaccination guidance for care workers

The Department for Health and Social Care has updated its operational guidance to confirm the procedure that care home workers in England should use when applying for proof that they are medically exempt from vaccination. This will only apply in limited circumstances, for example, due to severe allergies or a previous adverse reaction. Prior to 14 December 2021, individuals could self-certify that they are medically exempt if they work or volunteer in a care home. However, since 25 December 2021, those who are medically exempt have to verify their status using the NHS Covid pass in the same way as those who are fully vaccinated. To apply for an exemption, an application form must be requested from the NHS Covid Pass service and then sent for review by a specified GP or clinician. The GP or clinician will then send a letter confirming the exemption within two to three weeks.

Government announces overhaul of Human Rights Act

At the Conservative Party Conference back in October 2021, the government announced that there will be an overhaul of the Human Rights Act 1998 in this parliament. A Government-commissioned independent review panel, which was expected to report in the back in the summer of 2021, has yet to deliver its findings; however the government suggested at the party conference that overhauling the act would prevent criminals ‘abusing our human rights laws’. This announcement comes despite the parliamentary Joint Committee on Human Rights concluding in July 2021 that there is no case for changing the Human Rights Act. The committee noted that the Act, which incorporates the European Convention on Human Rights, has improved the enforcement and accessibility of human rights in the UK and has embedded human rights into the delivery of public services.

Uber drivers bring unfair dismissal and discrimination claims in relation to facial recognition technology identity checks

It has been reported that the Independent Workers Union of Great Britain and the App Drivers and Couriers Union (ADCU) are supporting a number of Uber drivers in bringing unfair dismissal and discrimination claims arising out of Uber’s facial recognition technology identity checks. Failed recognition and other identity checks are alleged to have resulted in drivers losing their jobs as well as having their licences revoked by Transport for London (TfL), since Uber is required to notify TfL if a driver fails an identity check. Research has shown that facial recognition systems have a particularly high error rate when used to identify people of colour, and the unions argue that this bias results in a disproportionate impact on black and ethnic minority groups. The Equality and Human Rights Commission is supporting the case being pursued by the ADCU.