This month's Quick Fire takes a brief look at the Taylor Review, the ICO subject access code of practice, employee monitoring and the ‘Repeal Bill’.

Taylor Review Published

The long awaited report of Matthew Taylor's review into modern employment practices has finally been published.

As might have been predicted, the ‘Good Work’ review does not come up with all the answers to what most commentators agree is a very complex issue. It does however include some quite radical proposals which, if implemented, will have a significant impact on all employers, not only those in the ‘gig economy’. For a summary of the key points arising from the review, please see our Stop Press briefing.

Following publication of Good Work review, the Government has committed to engaging with stakeholders, including those representing both employers and employees, to understand their views before publishing a full response to the review later in the year.

Many of the proposals will require significant periods of consultation and it therefore remains to be seen how many of them will find their way into the Government’s legislative programme, when so much parliamentary time and resources are already devoted to the complexities of Brexit. The only thing we can say with any certainty is that none of the proposed reforms will take effect any time soon.

ICO subject access code of practice

The Information Commissioner’s Office (ICO) has updated and reissued its subject access code of practice, to reflect recent Court of Appeal decisions relating to subject access requests (SARs).

The main change is in relation to the ‘disproportionate effect' exception, which has been expanded to explain the (limited) circumstances when the exception might apply to SARs, as clarified by the Court of Appeal. The guidance makes it clear that the exception cannot be used to justify a blanket refusal of a SAR; it requires a data controller to do whatever is proportionate in the circumstances. The code of practice also provides updated guidance on the factors taken into account by a court when considering whether or not to order compliance with a SAR.

Employee monitoring

The Article 29 Working Party (WP29), an independent European advisory body on data protection and privacy, has adopted a formal ‘opinion’ on employee monitoring. This opinion updates and complements its previous 2001 opinion and 2002 working document on workplace monitoring. It primarily concerns the application of the Data Protection Directive (95/46/EC), but also considers the additional obligations placed on employers by the General Data Protection Regulation 2016 (GDPR).

WP29 identifies the need to take into account technological developments, such as smart devices, which have enabled more intrusive and pervasive ways of employee monitoring. It has set out new guidelines for the legitimate use of new technology in a number of specific scenarios (for example, monitoring of social media profiles) and provided good practice recommendations for employers in relation to each.

It is likely that the WP29 opinion will be incorporated into a future revision of the Information Commissioner’s Employment Practices Code.

Brexit: ‘Repeal Bill’ introduced to Parliament

On 13 July 2017, the Government introduced the European Union (Withdrawal) Bill to the House of Commons.

The Bill has three main functions, intended to ensure that the UK exits the EU with ‘certainty, continuity and control’:

  1. It repeals the European Community Act 1972 (ECA) on ‘exit day’, the date of which will be determined by separate regulation but is currently scheduled to be 29 March 2019.
  2. It will convert existing EU law into UK law, to ensure that the UK retains a functioning statutory framework after exit day. This means that all EU-derived domestic legislation (eg the Working Time Regulations 1998), EU legislation and treaties with direct effect will be automatically converted into UK legislation. It will also retain as binding any judgments of the European Court of Justice (ECJ) that pre-date exit day.
  3. It gives ministers temporary delegated powers to amend existing legislative provisions (including Acts of Parliament) by secondary legislation, to ensure that UK legislation continues to function effectively after exit day. This is sometimes referred to as a “Henry VIII” provision.

The effect of the Bill will be to bring an end to the supremacy of EU law, meaning that any domestic legislation enacted after exit day will no longer need to be consistent with pre-exit or post-exit EU legislation. UK courts and tribunals will not be bound by any principles or decisions of the ECJ established on or after exit day, nor will they be able to refer any matter for determination by the ECJ. However, questions concerning the meaning of any retained EU law will still be determined by domestic courts in accordance with pre-exit ECJ case law. This could mean that UK courts and tribunals are bound by historic interpretations of retained EU law that has been subsequently reconsidered by the ECJ after exit day.

The Bill is likely to be the subject of intense debate, and perhaps significant amendment, due to its constitutional significance and the wide scope of the delegated powers it contains. It will be debated by Parliament after the House of Commons returns from its summer recess in September 2017.