What has happened recently in employment law?

What’s next for employment rights in post-Brexit Britain?

The Retained EU Law (Revocation and Reform) Bill 2022-23 was introduced to the House of Commons on 22 September 2022 and had its second reading on 25 October 2022. This will have a significant impact on the status of all current legislation which is derived from EU law and make some amendments to the European Union (Withdrawal) Act 2018. After the end of 2023, EU-derived legislation will be revoked, except where specifically preserved. There is also the option for some EU-derived law to be extended up to 23 June 2026. Retained EU law will be known as “assimilated law”, and the supremacy of EU law will be abolished. However, the Bill also includes powers to retain EU precedence in some specified areas At present, there have been no definitive policy statements explaining how the Bill will apply to individual legal practice areas. The Government has published a dashboard setting out a list of the main directly-effective and secondary EU legislation, but this is not a complete list and does not indicate future policy intentions. A significant amount of employment law is derived from EU law, including legislation relating to holidays, holiday pay, transfers of undertakings, agency workers and collective redundancies. Any weakening of employment protections that affects trade and investment could result in sanctions against the UK under the UK-EU trade and cooperation agreement.

Mind the gap: will agency workers fill the gaps in future strike action?

Judicial review proceedings have been issued by unions in response to the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 which came into force on 21 July 2022. These new regulations allow employment businesses to supply agency workers to replace striking staff. The TUC has already submitted a report to the International Labour Organisation over alleged infringement of workers’ rights to strike. Unison has issued proceedings alleging that the Government has failed to consider Article 11 of the European Convention on Human Rights, which protects the right to freedom of association, and international labour standards on the right to strike. It also argues that the new regulations are unfair and based on unreliable and outdated evidence from a 2015 consultation. The TUC has issued additional proceedings in collaboration with 11 other unions, arguing that the Government failed to consult unions and that the regulations breach Article 11. NASUWT, the teachers’ union, has now also announced that it intends to bring proceedings. Although these proceedings have been issued separately, they are likely to be heard in the High Court together.

How will living wages rise during the cost of living crisis?

The Living Wage Commission has announced a rise in the hourly rates for the real Living Wage to £10.90 across the UK and £11.95 in London. This amounts to a 10.1% rise in the UK and 8.1% in London, which are larger increases than seen in previous years to reflect higher inflation and energy prices. The London rate equates to an additional £4,777.50 above the National Minimum Wage, and the UK rate to an additional £2,730. The detailed methodology used to calculate the Living Wage is set out in the Resolution Foundation’s September 2022 report. Over 11,000 employers are formally accredited to the Living Wage scheme, with around 390,000 workers benefitting directly, and many other employers shadowing the rates informally. The new rates apply from 22 September 2022.

If your employee is under investigation, is suspension really the solution?

Acas has published new guidance for employers on staff suspensions during investigations. This sets out:

• how to decide whether to suspend;
• the process for implementing a suspension;
• how to support employees’ mental health during a suspension;
• how to ensure confidentiality; and
• how to deal with pay and holiday. The guidance recommends considering alternatives to suspension, such as changing shifts or sites, working from home, working away from customers, or stopping work on specific tasks or with certain systems. Acas also reminds employers that it is good practice to allow employees to be accompanied at a suspension meeting and for the terms of the suspension to be confirmed in writing.

What are the socioeconomic divides in the office?

On 21 September 2022, as part of its broader work in relation to diversity and inclusion, the Financial Services Skills Commission (FSSC) published an insight paper for employers on collecting socioeconomic background data. Research from the Bridge Group, cited in the paper, identified that employees from a lower socioeconomic background progress 25% slower than their peers without any difference in job performance. A joint discussion paper published in July 2021 by the FCA, PRA and Bank of England recommended that firms should begin collecting data on socioeconomic status as well as the statutory protected characteristics. However, the FSSC believes that only 15% of firms are actively measuring the socioeconomic background of their workforce. The insight paper sets out what it considers to be best practice as regards questions to ask, guidelines to follow and targets to set. This will also be of interest to employers in other sectors who are considering appropriate measures and approaches. Following a consultation period, financial regulators are expected to publish a policy statement on improving diversity and inclusion in 2023.

Why didn’t Raab’s human rights reforms fit the Bill?

The Bill of Rights Bill 2022-23 was introduced to Parliament on 22 June 2022 but was reportedly dropped by the Government under Liz Truss. It did not therefore progress to a second reading (previously scheduled for 12 September 2022). This Bill would have replaced the Human Rights Act 1998, although the UK would have remained a signatory to the European Convention on Human Rights. Key proposals included limiting the abuse of human rights law in certain situations, for example, the deportation of criminals; introducing a permission stage to ensure that courts focus on serious human rights claims; and affirming the Supreme Court’s independence from the European Court of Human Rights in Strasbourg. It has been reported that the Government is looking at other legislative options for reform.

Machine unlearning: how do we combat digital discrimination in an AI age?

The Equality and Human Rights Commission (EHRC) has announced that tackling discrimination in the use of artificial intelligence (AI) is to form a major strand of its new three year strategy, addressing the concern that bias is embedded in the underlying data or through the individuals who have developed and programmed AI systems. The EHRC highlights emerging evidence that bias built into algorithms used by public sector organisations can lead to discrimination in public services, for example, when allocating benefits or assessing fraud risk. There is also evidence that facial recognition software may be disproportionately affecting people from ethnic minorities. New guidance on the use of AI in public services was published by the EHRC on 1 September 2022. This sets out the benefits and risks of AI and how it links to the public sector equality duty, with a useful checklist on how to collect, assess and monitor equality evidence. The guidance will also be of interest to private sector organisations. The EHRC is currently supporting a taxi driver in a race discrimination claim regarding Uber’s use of facial recognition technology for identification purposes.