2017 - A Year of individual empowerment?

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At first glance, the big HR and employment law stories of 2017 would appear to have little in common – abolition of tribunal fees, legal challenges to employment status and working arrangements in the ‘gig’ sector, preparations for compliance with the General Data Protection Regulation (GDPR), gender pay gap reporting and the fallout from the #Metoo campaign.  

However, on closer inspection, you can see a common thread running through all of these issues - namely, individual empowerment. Each in their own way affords individuals more power and control over aspects of their working environment. This increase in power has come about either by an increase in transparency, the granting of new rights, the extension of existing rights, or the removal of barriers to individuals seeking to enforce such rights.

#Metoo - lifting the lid

Nowhere has the issue of empowerment received more attention than via the #Metoo campaign.  Starting out as a response to Hollywood’s sexual abuse scandal, the campaign quickly spread to become a digital Mexican wave, offering individuals (men as well as women) a platform to speak out about their own experiences of sexual assault or harassment in their working lives under the umbrella of a global call for change.

In the UK, the initial focus of attention was on abuses of power and inappropriate behaviour within Westminster and the Houses of Parliament. However, arguably the biggest impact of the campaign has been its exposure of the sad fact that in 2017 sexual harassment and discrimination (in its many and varied forms) are still common in many workplaces.

In the wake of the initial #Metoo Twitter storm, the TUC reissued findings from research it undertook in 2016, which had found that 52% of the women surveyed had experienced some form of unwanted behavior at work, including groping, sexual advances and inappropriate jokes. Among women aged 16-24, the proportion rose to 63%. Yet 80% of these women had failed to report the abuse to their employer. 

The UK already has comprehensive equality legislation, and most employers have written policies and procedures which seek to address the ‘risks’ of harassment. Clearly, however this isn’t enough, as the problem appears to stem from something more endemic. Whether #Metoo can translate into a genuine and meaningful change to wider workplace power imbalances, which seem to result in harassment and discrimination going unreported and/or unaddressed, remains to be seen. The Equality and Human Rights Commission appears to have felt compelled to take some action in response, writing to the chairmen and women of FTSE 100 companies asking them to supply evidence of the safeguards they have in place to prevent sexual harassment, and to ensure it can be reported without fear of retribution. These organisations have until 19 January 2018 to respond, or face the possibility of the EHRC exercising its further investigation and enforcement powers.

Arguably, if #Metoo achieves nothing else, it will at least have forced everyone to take a long hard look in the mirror, and recognise that no organisation, or individual, can afford to be complacent about the issue.

Employment tribunal fees

The Supreme Court’s judgment in July that the system of Employment Tribunal fees introduced in 2013 by the Coalition government was illegal, was hailed as a significant victory for worker empowerment by the successful challenger, UNISON.

The Court’s decision was based on its view that the fees regime restricted individuals’ access to justice - a fundamental EU and domestic law right. UNISON had presented evidence to the Court showing a fall in claims following the introduction of fees that was, 'so sharp, so substantial and so sustained', that the union argued it could only be explained by the fact that the fees were not reasonably affordable to those on low to middle incomes. The Court also considered that the fees regime particularly deterred claims of low monetary value (which would be cancelled out by the amount of the fees themselves), and such claims were often brought by the most ‘vulnerable’ workers, who were the ones most in need of protection.

Following the judgment, the Government quickly confirmed that fees would no longer be charged in the employment tribunals, and that it would be refunding fees paid under the regime.

For further details of the Court’s reasoning see our alert, Supreme Court rules employment tribunal fees regime is unlawful.

GDPR

The General Data Protection Regulation (GDPR) could be viewed as a genuine attempt by the EU to place ‘citizens’ – i.e. individuals – at the heart of decision-making in respect of their own data.  It places great emphasis on balancing the rights and freedoms of the individual against the rights and interests of businesses, including employers. The introduction to the GDPR confirms this, stating: “The protection of natural persons in relation to the processing of personal data is a fundamental right. Article 8(1) of the Charter of Fundamental Rights of the European Union and Article 16(1) of the Treaty on the Functioning of the European Union provides that everyone has the right to the protection of personal data concerning him or her”.

The GDPR will also afford individuals specific new rights - the 'right to be forgotten', the 'right to restrict processing', and the 'right to data portability'. These new rights, when coupled with enhanced subject access request rights, and increased requirements on data controllers to be transparent about their data processing activities, will inevitably lead to a change in employee thinking about how their employers use their personal information. We may well see employees increasingly seeking to exercise greater levels of control over their employer's data processing activities in the future.

Worker status

Recent and continuing litigation regarding employment status, particularly in relation to those working in so-called ‘gig economy’ seems to have breathed fresh life into the potential reforms suggested in Matthew Taylor’s review of modern working practices published in the summer.  See our e-alert, Taylor Review of Modern Working practices recommends introduction of ‘dependent contractor’ status.

Many believed that after the Government lost its majority in the general election, the Taylor Review recommendations would be ‘kicked into the long grass’. However, two House of Commons Select Committees – the Work and Pensions Committee and the BEIS Committee – have recently revisited the Review’s recommendations. In a joint Report, ‘A framework for modern employment’, the Select Committees expanded on some of the Taylor Review’s recommendations, and even produced a draft Bill setting out proposed legislative changes to bring these about.  The Committees have urged the Prime Minister to prioritise legislating on these issues, but it remains to be seen whether she/the Government will have the bandwidth to do so in the foreseeable future. Click here for further information and to access the Report.   

Gender pay gap reporting

The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017, which require employers with 250 or more employees to report on the mean and median gender pay and gender bonus gaps within their organisation, as well as the proportion of men and women who receive bonuses and proportions of men and women in quartile pay bands, came into force on 6 April 2017.

One of the main drivers behind the requirement to publish gender pay gap information is the notion that transparency in this area will push employers to take action to close the gap. Whether or not this works as intended remains to be seen, but employers would do well to bear in mind that their gender pay gap information will be accessible by potential new recruits – thus empowering them to factor the gender pay picture into their decisions about where to apply for work. Indeed, a survey of over 1,000 employees, conducted by Business in the Community, revealed that 92% would take into account an employer’s gender pay gap when applying for jobs and more than half of female respondents would favour a company with a smaller gap/the one that’s more proactive in closing it if choosing between two employers.

Employers who are caught by the Regulations have until 4 April 2018 to publish their first reports. For further information on the reporting requirements, see our update, Gender Pay Gap Reporting Regulations come into force on 6 April.

So, how can EEF help?

As always, EEF will continue to regularly update you on the evolving HR and employment law agenda as well as provide a frequently updated programme of seminars and training to help you get to grips with the practical implications of legal, policy and case law developments.

Why not join our free webinar - Lunch and Learn Employment Law Update – on Thursday to get further information on some of the above issues, as well as practical steps for HR to take in response. For further information and to register click here.

Those employers still struggling to get to grips with the impact of the GDPR and the preparations required for compliance should attend one of the remaining sessions in our national seminar programme, GDPR and Data Protection for HR: On the Road to Major Change, running in the New Year. For further information, or to book a place, click here.

Employers with 250+ employees who have yet to produce their gender pay gap reports, and who would appreciate a detailed explanation of just how to do it, should attend our national seminar programme, Gender pay gap reporting: How to comply, running in February 2018. For further information, or to book a place, click here.

Author

Principal Legal Adviser

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