The global pandemic has changed many things. One of the key changes has been the way that we work. In 2019, around 5% of people mainly worked from home. A year after the pandemic started, this number has jumped to around 35%. 74% of businesses plan to maintain more home working. With the government looking to encourage people back into the workplace, debate on this issue is set to continue.
If there is going to be an overhaul of our working practices, is an overhaul of our employment rights inevitable? The House of Lords Select Committee on COVID-19 seems to think so. Its recent report, "Beyond Digital: Planning for a Hybrid World" (the Report) (see here) makes some key recommendations.
The Report highlights that the move to a more digital workplace risks marginalising and excluding a substantial proportion of the UK workforce. Ian Macrae, Director of Market Intelligence at Ofcom, suggests that 11% of households do not have internet access, equating to 2.8 million households. Of these, approximately 10% or 280,000 households cannot afford internet access. Digital illiteracy is another issue. According to the Report, around 9 million people are unable to access the internet by themselves and 11.7 million people lack the digital skills needed to be able to work remotely.
While it is clear that individuals in this situation risk being excluded from some work sectors as a result of digitalisation, it is not clear what legal recourse they may have. Financial wealth and digital illiteracy are not currently included in the nine "protected characteristics" under the Equality Act 2010 (Equality Act). With the Employment Tribunals currently operating in a primarily virtual space, they may struggle to raise a challenge even if they did.
However, some groups with protected characteristics may be able to bring discrimination claims if required to work remotely. There may be an argument that this might amount to indirect age discrimination. The statistics seem to support the fact that the older generation stereotypically have more limited technological skills, with workers over the age of 50 being two and a half times more likely to fall into long-term unemployment. However, this argument is yet to be tested in the tribunals.
There is also the issue of disability discrimination. According to the Report, only 38% of disabled people have the digital skills for work, compared to the UK average of 52%, and disabled people are 40% less likely to have received digital skills support from their workplace. These individuals may rely on the Equality Act to make claims of discrimination. In addition, section 20 of the Equality Act places a duty on an employer to make reasonable adjustments to avoid the disadvantages that disabled employees suffer in the workplace. What these adjustments may look like will be fact dependent, though flexibility will be key.
For those who are unable to rely on their age or disability as a protected characteristic, the Equality Act offers little recourse. Might there be scope to introduce something similar to the duty to make reasonable adjustments for those who may struggle in a digital world? Both major political parties have historically flirted with the introduction of universal broadband but, in order to be effective, every household would need not only access to the internet but also a device on which to use it. However, this will not achieve digital equality if people lack the necessary skills and, accordingly, there will be a need for training or "upskilling". Could there be scope to make this an employer obligation, rather than a perk? The answer to these questions is not yet clear and the pandemic gives us an ever-moving landscape but, as more businesses adapt their working practices, it is evident that there is an appetite for change.
How does an employer manage its employees when it cannot actively see them? Louise Marston, Director of Ventures at the Resolution Foundation, believes that employers may try to bridge this gap by making use of the available technology. It is possible for an employer to conduct surveillance through an employee's webcam. Employers have also monitored employees' work screens, the websites they visited, and the people they talked to on the phone. However, care must be taken to ensure that any monitoring does not cross the line and become a breach of privacy.
According to Anna Thomas, Director of the Institute for the Future of Work there are "real gaps" in the legal protection of workers. The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 give employers the right to monitor and keep a record of any communications on any device which they have a right to control, including any devices they provide to be used for work. Whilst untested in the courts, Article 8 of the European Convention on Human Rights, which covers the right to private and family life, will seemingly not prevent surveillance of work activities provided that there is a proportionate and justifiable reason. Employers will struggle to justify excessive surveillance of their employees.
The General Data Protection Regulation (GDPR) intervenes to some extent by placing some hoops to be jumped through, such as consent, although this does not generally work in an employment context. However, many of these requirements can be achieved through a data protection policy that few employees will pay attention to. As a result, there are increasing calls, including in the Report, for legislation to provide additional protections to employees with regards to monitoring.
The "always on call" culture
One of the key advantages of working from home is that many workers feel as though they have more control over their work-life balance. The removal of the dreaded commute has been particularly popular. However, according to the Report, there has also been a 20-25% increase in people’s working hours since the start of the pandemic. This stems from a blurring of the line between work and home. Technology has also been seen to enable the "always on call" culture allowing employees to be contactable at all times, whether by email or phone.
This has led to calls for a "right to disconnect". Such a right, according to the Report, could be enshrined in law and would give workers the right not to be contacted outside their normal working hours. This may seem difficult to achieve in a hyper-connected business culture, but it is worth noting that similar laws already exist in a number of countries, including France, Italy and the Philippines. The proposal also has the support of the Trades Union Congress. According to Kate Bell, the Head of Rights, International, Social and Economics at TUC: "It is not a regulation that says that nobody must be emailed after 5 o’clock, but it is a regulation that says that you have to have that conversation with your staff, and you have to set safe limits."