351: What’s coming up in employment law?

Centre for Data Ethics publishes guidance for recruiters using data-driven technologies

The Centre for Data Ethics and Innovation and the Recruitment and Employment Confederation have published guidance to help recruiters be confident in purchasing and using data-driven technologies (‘Data driven tools in recruitment guidance’, 7 December 2021). The guidance warns recruiters to ensure that vendors have audited and validated underlying algorithms to protect against potential biases when they are applied to employment data, and to seek reassurance that tools which analyse face, speech or voice will not result in discriminatory outcomes. It is understood that the Information Commissioner’s Office and the Equality and Human Rights Commission are updating their regulatory guidance in this area.

Treasury, HMRC and BEIS publish a call for evidence on tighter recruitment regulations on umbrella companies

The Treasury, HMRC and BEIS have published a call for evidence on the umbrella company market setting out various proposals to address concerns about non-compliance with tax and employment rights. The most significant proposal is to bring umbrella companies into the recruitment sector’s regulatory framework for the first time, with new regulations to prevent and tackle common issues such as payroll skimming, and non-payment of wages and holiday pay. The call for evidence seeks to establish a picture of the specific tax risks and the most up-to-date market practices by asking umbrella companies how they ensure tax compliance in their labour supply chains and inviting workers to share their experiences of working through umbrella companies. Views are sought, in particular, on the increasing use of ‘joint-employment’ contracts whereby an umbrella company and employment business both employ the worker, making it more difficult for them to understand their relationship with either entity. Responses are requested by 22 February 2022.

Minister for Disabled People launches consultation on disability workforce reporting

The Minister for Disabled People has launched a consultation on disability workforce reporting which was promised as part of the National Disability Strategy published in July 2021. The consultation acknowledges that there is insufficient evidence on use of the existing voluntary reporting regime and that opinion is divided about whether disability reporting should be mandatory. Employers and disabled employees are asked to provide evidence on current reporting practices; opinions for and against a mandatory approach; how a mandated approach could work in practice; whether a standardised approach to data collection should be adopted; and alternative approaches which could also enhance transparency and increase inclusivity. At present it is envisaged that disability workforce reporting would only apply to large employers with over 250 employees and that this would involve publishing the proportion of the workforce who identify as disabled. The consultation closes on 25 March 2022 and a response is due to be published by 17 June 2022.

House of Commons Women and Equalities Committee publishes report criticising the government

The House of Commons Women and Equalities Committee has issued a report which is highly critical of the government’s response to the consultation on the Gender Recognition Act 2004 (GRA) published in September 2020. Although the government acknowledged that trans healthcare provision and the procedure for applying for a Gender Recognition Certificate need improving, it concluded that the GRA strikes the right balance. This new Women and Equalities Committee report states that the GRA is no longer fit for purpose and should be reformed as a matter of urgency in order to strengthen transgender rights and provide greater clarity for employers and service providers. Its recommendations include removing the two-year requirement for living in an acquired gender; removing the need for a diagnosis of gender dysphoria; and reviewing the use of the occupational requirement exception in the Equality Act 2010 which allows certain jobs to be open only to people who are not transgender.

Anxiety and depression causes over 50% of all work-related absences, says Health and Safety Executive

A new report by the Health and Safety Executive has found that stress, anxiety and depression caused over half of all work-related absences in the past 12 months (Health and Safety at Work: Summary statistics for Great Britain 2021). Out of 850,000 workers suffering from a new case of work-related ill health, 451,000 reported that this was stress, anxiety or depression. This continues the upward trend that existed prior to the pandemic. The effects of the pandemic are contributory factors, with other causes including high workloads, changes at work, bullying, and lack of support. Women aged 25 to 34 are most likely to report work-related stress, anxiety and depression, and above-average rates are reported in the education, health and social care, defence and public administration sectors.

European Commission to create new criteria for assessing employment relationship

The European Commission has adopted a proposal for a new directive aimed at improving the working conditions of gig economy workers. The commission believes that of 28 million people working in the EU gig economy, as many as five million may be misclassified as self-employed rather than employees. This new directive would set out a list of five criteria for classifying whether there is an employment relationship, including the extent to which the employer controls remuneration, conduct, appearance, and the organisation of working hours. If two of these criteria were met, then the platform operator would be legally presumed to be an employer, although they would have the right to contest this classification. The proposals also include requirements for greater transparency of algorithmic decision-making, for example, by giving employees and the self-employed the right to contest automated decisions and to understand how tasks are allocated. A public consultation on the proposed directive closed on 4 February 2022.

Parliamentary recommendation for tighter regulations on workplace AI

The All-party Parliamentary Group on the Future of Work has recently published a paper on AI at work which highlights the need for an updated regime for regulating the use of AI. The paper proposes an ‘Accountability for Algorithms Act’ which would protect workers from the adverse impacts of increasingly powerful but invisible algorithmic systems, such as those used in surveillance and performance management. It would create a new corporate and public sector duty to undertake, disclose and act on Algorithmic Impact Assessments; update digital protection and transparency for workers by providing them with a full explanation of the purpose, outcome and significant impacts of algorithmic systems; offer additional collective rights for unions and specialist third sector organisations; and improve enforcement. The MPs highlighted, in particular, the increasing use of algorithms beyond the gig economy, for example, in setting performance targets, and the adverse impacts this can have on mental health, equality, dignity and autonomy. A White Paper is expected early this year setting out the next phase of the government’s National AI Strategy.

Equality and Human Rights Commission establish legal support fund to tackle race discrimination

The Equality and Human Rights Commission (EHRC) has launched the Race Legal Support Fund, a landmark legal fund to tackle race discrimination and help victims take action against organisations which may have breached equality law. The Fund will be open for a minimum of two years, with £250,000 allocated in the first year. It will cover all forms of workplaces, including sports clubs and similar organisations. Legal practitioners can apply for funding to provide advice and help resolve race discrimination complaints up to and including legal proceedings where appropriate. This Fund follows previous EHRC schemes providing support to disabled people and those who have been discriminated against by education providers and transport operators.

Gender equality charity urges employers not to ask job applicants about their previous salaries

The Fawcett Society, a charity which campaigns for gender equality and women’s rights, has published a briefing and research note urging employers to stop asking jobseekers about their previous salaries. The briefing highlights that by basing workers’ new salary on their previous pay, this practice stops them from seeking to increase their wages or escaping the impact of wage discrimination by moving jobs. These questions are faced by 47% of working adults. 58% of women and 54% of men reported that they felt they got a lower salary offer than if the question had not been asked. There is evidence from the USA that banning salary history questions has a significant positive effect in closing gender gaps, but that some employers may get around the ban by asking about desired salary instead. The Society also highlights polling by the Equality and Human Rights Commission which found that nearly two thirds of women take the gender pay gap into account when considering applying for a new job.

DEIS launches review on increasing representation of women in FTSE 350 leadership positions

The Department for Business, Energy & Industrial Strategy has recently announced the launch of the ‘FTSE Women Leaders Review’, a new five-year independent review aimed at increasing the representation of women in the senior leadership and board appointments of FTSE 350 companies. This follows on from the Hampton-Alexander review which published its final report in February 2021. An online portal for FTSE 350 companies to submit relevant gender data closed on 30 November 2021, and the next annual report by the FTSE Women Leaders Review will be published on 23rd February 2022.

DWP publishes proposed increases to statutory sick pay and other benefits

The DWP has published its proposed annual increases for a number of statutory benefit payments. Statutory sick pay will increase to £99.35 (from £96.35). Statutory maternity pay, paternity pay, shared parental pay and maternity allowance will increase to £156.66 (from £151.97). Statutory adoption pay will also increase to £156.66 (from £151.97). These rates will be confirmed once an Order is made and are due to take effect on 11 April 2022.

Government proposes to ratify ILO convention on violence and harassment

The government has proposed that the UK should ratify the International Labour Organisation (ILO) convention on violence and harassment. The ILO is a United Nations agency which promotes internationally recognised rights for workers mainly through conventions that are legally binding on the countries that ratify them and monitors how those rights are being applied. Member states adopting the ILO’s violence and harassment convention must demonstrate that they have an inclusive, integrated and gender-responsive approach to prevent and eliminate violence and harassment in the workplace. Ratification would not require changes in UK legislation as the necessary standards are already met by existing equality and discrimination legislation.