407: Upcoming employment and immigration changes to look out for

Does the EU Settlement Scheme breach the Withdrawal Agreement?

In a judicial review challenge brought by the Independent Monitoring Authority against the Home Office, the High Court ruled that it is unlawful to require EU citizens who already have pre-settled status to make a further application for settled status in order to protect their right to legally remain in the UK. This was on the basis that the Withdrawal Agreement makes it clear that a right of residence can only be lost in very specific circumstances which do not include expiry of pre-settled status. We understand that this decision is not being appealed by the Home Office. Although this decision means that applicants granted pre-settled status should not lose their legal right to remain in the UK if they do not make an application for settled status, it may still be advisable to apply for settled status.

Rights of a data subject expanded by ECJ

The European Court of Justice (ECJ) recently confirmed that data subjects have the right to be informed of the specific identity of any recipient of their personal data, unless this is materially impossible or the request is manifestly unfounded or excessive. In RW v Österreichische Post AG, the ECJ ruled on the right, which is also included in the UKGDPR, of data subjects to obtain information about ‘recipients or categories of recipient’ whom their personal data has been disclosed. This may be a useful decision for employees seeking to establish who has received their personal data in the context of litigation, or grievance or disciplinary proceedings. Although not legally binding in the UK, the ECJ’s judgment could be taken into account by the Information Commissioner’s Office and the UK courts where relevant.

Government backs Bill to give employees a say over unpredictable working hours

The Government has recently announced that it will be supporting the Workers (Predictable Terms and Conditions) Bill, a private member’s bill giving workers with unpredictable working hours the right to request a more predictable working pattern after 26 weeks’ service. This proposal, which aims to address ‘one-sided flexibility’ of employers, was contained in the Government’s 2018 Good Work Plan, which was published in response to the 2017 Taylor Review of Modern Working Practices. It is expected to apply to workers, employees, and agency workers. The right will apply where a worker’s existing working pattern lacks certainty in terms of the hours or times they work, or if it is a fixed term contract of less than 12 months. Employers will be able to refuse a request for certain specified reasons similar to those available in response to a flexible working request. The Bill has had its second reading in the House of Commons, but we do not yet have a clear timescale for implementation of this new right.