Employment Law Focus

Should HR be more involved in the design and rollout of workplace technology?

Will modern technology force us to replace roles (performed by people) with functions (performed by people, technology, robots and algorithms)?

At what point do employees start to resent technology impinging on their jobs? When it can do 10%, 20% or 30% of their role faster and better than they can?

These are just some of the questions we explore in this episode on workplace technology and its impact on employees. Jonathan Rennie and Sarah Maddock in our employment team are joined by Emma Erskine-Fox from our data privacy and cybersecurity team.

We dig into this complex topic and highlight the issues HR and legal teams need to be aware of, and share our thoughts, cases and practical tips.

Our news section covers a rare case where the tribunal gave some useful advice and a stark warning against allowing your equalities training to go “stale”.

Our listener’s question asks about dismissal and reengagement or “firing and rehiring”, which has become increasingly popular during the pandemic. Read our short guide to this practice. 

Note: since we recorded this episode, the court in the Netherlands has ordered Uber to reinstate the five British drivers who were struck off by robot technology.

Send us your questions and we'll answer them in a future episode – email [email protected] or Tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment

You can find out more about our employment team at tltsolicitors.com/employment

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The pandemic has required many people to balance work with heightened childcaring responsibilities.

For employers, this means considering the needs of working parents like never before – flexing policies, considering flexible working arrangements and other solutions and supporting people with their mental health and wellbeing.

The challenges are many and varied, from changing working arrangements to managing performance issues.

At the same time, the law recognises the need to be pragmatic and protect the interests of the business.

This is a big topic, but in this episode, we seek to answer some of the burning questions, including:

• What’s a socially and politically acceptable way of managing working parents during the pandemic and moving forward?
• How far must employers go to identify those who are struggling and need more support?
• What can we learn from the historic uptake of initiatives like shared parental leave, and should childcaring be a protected characteristic under the Equality Act?
• How has the gender balance in childcaring during the pandemic affected employees and the risk of a claim for direct or indirect sex discrimination?
• Is the UK’s legal framework for family friendly policies keeping pace with societal trends?

The pre-pandemic issues surrounding working parents have not gone away, and are still very much on the agenda. We consider what changes we might see in the law moving forward.

In our news section, we cover:

• New research from TLT showing an increase in employees using interim relief applications. These can be challenging and costly for employers to deal with, and many HR teams will never have seen one before.
• A recent reminder of the need to be flexible to help parents with childcare commitments – particularly where a flexible contract has already been agreed.

Useful links:

EHRC Working Forward campaign

Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment

You can find out more about our employment team at tltsolicitors.com/employment

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Employee monitoring isn’t just about using software to check that people are working hard enough. It can be digital, manual, well intended or even a regulatory requirement.

But whether you’re monitoring devices, collecting data to make employment decisions or using CCTV (or even microchips), there’s a whole host of data protection and employment risks to consider.

In this episode, we discuss:

• The growth of employee monitoring and why employers might use it
• The GDPR principles of transparency, necessity and proportionality
• Using employee records for positive discrimination
• The £32.1m fine against H&M for “excessive” monitoring
• The role of data protection impact assessments
• Who’s responsible for CCTV and employee monitoring in shared workspaces

Our news section covers:

Two legal challenges against Uber regarding automated decisions about employees

The ICO’s final guidance on data subject access requests, including when you can “stop the clock” and what constitutes a manifestly unfounded or excessive request

We also answer your questions about whether an employee can withdraw an access request and how employers should be preparing for the end of the Brexit transition period.

Useful links

TLT update on ICO guidance

ICO guidance on DSARs

Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment

You can find out more about our employment team at tltsolicitors.com/employment

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Unconscious bias (UB) is a growing legal issue for employers. It’s widely regarded as a barrier to equality, diversity and inclusion, and employment tribunals are looking more closely at motivation and bias in discrimination and harassment cases.

While it’s been talked about for a number of years, many employers still aren’t doing enough to reduce the risk of UB infiltrating people’s decisions about candidates and colleagues.

In this episode, we discuss:

• How does UB present itself as a legal issue?
• Ways of reducing the risk, including training, recruitment models and corporate culture
• What the employment tribunal looks for
• Proving UB and a direct causal link
• Discrimination and reasonable adjustments case law

In our news section, we cover:

• Facial recognition technology and a case showing just how far organisations must go to satisfy themselves that there isn’t a risk of bias
• The breakdown of working relationships between employees, and a surprising decision that a dismissal was fair, even though there was no dismissal process
• Employment status, including a finding of “false self-employment” – a stark warning ahead of possible job losses as a result of the pandemic
• The latest predictions about the Supreme Court’s pending decision in the Uber employment status case, due later this year

We also share our views on the government’s long-term “back to work” plan, including refusal to return to work, unfair dismissal, flexible working requests and indirect sex discrimination.

Further reading:

AI – ethical considerations and the privacy legal framework

Seven top questions on returning staff to work during the pandemic

Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment

You can find out more about our employment team at tltsolicitors.com/employment

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HR teams need to plan for the inevitable rise of flexible and agile working after the Covid-19 pandemic.

Risks and questions abound, from discrimination and harassment to protecting employees’ physical and mental health and wellbeing.

In this episode, we look at:

• The right to request flexible working, and whether this goes far enough (compared to countries like Finland);
• The grounds for refusing a request, and whether this will be harder moving forwards;
• The risk of claims relating to indirect sex discrimination, health and safety (both mental and physical) and protected characteristics;
• Whether remote surveillance of employees is legal, and how to manage the risks; and
• The need for a robust approach to data protection and information security.

We also look at what recent news stories have taught us about the wide scope of equalities protections and the need for a dress code for virtual meetings.

In our listeners’ questions, we discuss the use of personal devices for work purposes when working remotely and the expected rise in whistleblowing claims as a result of the pandemic.

Useful links:

ICO’s tips on working from home securely

TLT’s ‘Fit for the future’ hub

Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment

You can find out more about our employment team at tltsolicitors.com/employment

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Whistleblowing is growing at an alarming rate. This is being driven by high profile cases as well as campaigns against systemic issues like data privacy and sexual harassment.

There has also been an increase in complicating factors – including whistleblowers raising grievances and additional issues arising part way through an investigation.

Having an effective whistleblowing policy is now considered fundamental to good corporate governance, culture and risk management. The decisions you make early on can have a significant impact on the risks and how the investigation unfolds.

Some of the biggest risks include financial and reputational damage. There is no cap on whistleblowing claims and they can become part of an organisation’s permanent digital footprint.

In this episode, we look at:

• how to identify a whistleblowing claim;
• complicating factors, including how to defend your reputation; and
• how to manage an investigation, including who should be involved; reporting to the regulator; your obligations towards the complainant and others; and data protection.

We also look at some recent news stories, including:

• a ruling that ethical veganism can be protected under the Equality Act;
• new technical guidance from the EHRC on tackling sexual harassment at work; and
• the use of love contracts and #MeToo Bots.

Useful links

Parental bereavement leave and other April 2020 changes
The Whistleblowing Commission’s Code of Practice
TLT’s coronavirus hub

Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment

You can find out more about our employment team at tltsolicitors.com/employment

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If you’ve enjoyed listening, please rate us and write a review.

Since the General Data Protection Regulation (GDPR) came into force, HR teams have been flooded with requests by employees for a copy of the personal data the company holds about them.

This is often done as part of threatened litigation and can be challenging to deal with, not least because the deadline is shorter and HR needs to make a judgment call on how to respond.

The regulator has received a huge volume of complaints about how requests are dealt with, and you don’t want to be the first company to face a fine.

In this episode, we look at:

• The right to refuse a request or extend the deadline;
• How to set the right search parameters; and
• What you can and can’t withhold.

We look at the role of culture, IT and training and how self-serve platforms and automation can help foster an environment of trust and speed up the process.

And we answer questions like: Do you have to use the search terms requested by the employee? And should you search instant messages, texts and WhatsApps?

In our news round-up we look at:

• How much home working is too much, according to a new report?
• Can employers be held vicariously liable for a data breach by a disgruntled employee?
• Is the use of facial recognition technology legal?

Useful links:

ICO consultation

Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment

You can find out more about our employment team at tltsolicitors.com/employment

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Finally, if you’ve enjoyed listening, please rate us and write a review.

Chronic stress impacts employee wellbeing, productivity and company performance.

With the World Health Organisation now classifying burnout as a workplace disease, employers need to understand their legal and moral duties to prevent, identify and manage this issue.

In this episode crammed with top tips and examples we look at:

• What causes burnout, from workplace factors like always-on technology and a culture of out-of-hours working to external events like Brexit anxiety
• How some companies are managing the risks, from mental health first aiders and regular wellbeing days to 32-hour working weeks and not delivering emails out of hours
• The lengths employers can be expected to go to ensure that someone can remain in employment – but does extreme burnout always require an extreme remedy?

In our news round-up we cover:

• A discrimination case involving an employee's social media post (read our latest article on social media issues);
• New legislation and guidance on the use of NDAs or "gagging clauses" (read Siobhan's comments in People Management); and
• Bereavement leave for pets – could this become law and how to deal with it.

Useful links from this episode:
The Stevenson / Farmer review
Equality Act 2010 Code of Practice
HSE stress risk assessment template

Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment

You can find out more about our employment team at tltsolicitors.com/employment

Sign up to receive insights including our A-Z of employment law at tltsolicitors.com/signup

Finally, if you’ve enjoyed listening, please rate us and write a review.

From air con wars and dress codes to live streaming sports and unexplained absences, summer can present a unique raft of challenges for HR and legal teams.

What starts off as an office moan can quickly escalate, with the most serious cases resulting in a discrimination claim.

In this episode of TLT's employment law podcast, we look at three of the "hottest" issues you might face this summer and throughout the rest of the year, including:

• Air conditioning and dress codes – do office temperatures discriminate against women? Can you force employees to wear a dress code in all weathers?
• Sickness and absence – how do you raise suspicious absences? How do you manage competing holiday requests? Do religious holidays take precedence? And can you or should you stop employees from working on holiday?
• Distractions at work – tennis, cricket, cycling, football transfers, Love Island… is it effective to ban distractions outright?

We share some cautionary tales and some best practice advice.

We also look at the latest news headlines including tribunal system delays and the legality of positive discrimination to improve ethnic diversity, and answer your questions.

Send us your questions and we'll answer them in the next episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tagging @TLT_Employment

You can find out more about our employment team at tltsolicitors.com/employment

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Finally, if you’ve enjoyed listening, please rate us and consider writing a review.

If an employee feels they have been the victim of discrimination or harassment at work because of a philosophical belief, they could claim for compensation.

But what is a philosophical belief? Is fox hunting, life after death, veganism, Brexit or Scottish Independence protected under the Equality Act or is this just an opinion?

And what happens when one person's belief conflicts with another's, like Christianity and homosexuality? There is no hierarchy of beliefs so how should employers deal with this?

What impact has social media had on these cases, with it being so easy now for people to express their views on a particular topic?

Philosophical beliefs can be a tricky area for HR teams to advise on, but it's a growing issue and important to get right from a reputational and financial perspective.

TLT's employment team offers their views and shares some advice on how to deal with these cases, including the need to remain objective, listen and to have clear policies on how the company handles discrimination and bullying.

We also comment on three recent news stories including:

• Brexit and how the EU Settlement Scheme is performing
• CCOO v Deutsche Bank (ECJ), which suggests that the UK law on time recording might be in conflict with provisions of the European Working Time Directive
• The government-led consultation on maternity rights and enhanced rights on an individual's return to work, including our thoughts on the proposals

Finally, we answer some of your questions.

Send us your questions and we'll answer them in the next episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tagging @TLT_Employment

You can find out more about our employment team at tltsolicitors.com/employment

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Don't forget, if you’ve enjoyed listening, please rate us and consider writing a review.