UK Employment Law Coffee Break: Labour's employment proposals, TUPE and harassment, and our latest GDPR for HR seminar

Labour Party proposals

It has been reported that the Labour Party plans to extend the existing sex-based equal pay protection to provide a right for black, Asian and ethnic minority workers, as well as disabled people, to bring equal pay claims under a new "Race Equality Act".

Currently, a sex-based equal pay claim can be brought where the employee can find a comparator of the opposite sex doing "equal work" who receives more pay.  It is often complex to establish whether two people are doing equal work and this has been the subject of much case law.

An employee's work is equal to that of their comparator if is like work, work rated as equivalent, or work of equal value. Employers can defend an equal pay claim if they can establish the reason for the difference in pay is due to a "material factor" that is not discriminatory on the grounds of sex whether directly or indirectly (for example qualifications, skills or market forces).

At present, black, Asian or ethnic minority employees who are paid less than a white employee for equal work on the grounds of their race can bring a race discrimination claim under the Equality Act (likewise a disabled employee in the same circumstances). Until further detail is available, it is unclear how an extension of equal pay regime would afford employees greater protection.

Also of relevance to employers, Angela Rayner, the deputy leader of the Labour Party, talked on Sky News last weekend about introducing a bill within 100 days of an election to make major changes in the world of temporary staffing, gig working and contracting. These changes will include day-one employment rights for all workers, a ban on "exploitative" zero-hours contracts (which is effectively the main agency worker and gig worker mode of engagement) and an end to "bogus" self-employment.

The detail is not yet clear but suppliers (including staffing companies and platforms) and users of temp and zero-hours workers and contractors should start thinking now about the likely impact of the promised changes on their commercial models and costs, including longer-term supply arrangements they are already signed up to. Kevin Barrow and Frances Lewis from our Workforce Solutions team take a closer look at these proposals in this Insight.

TUPE and liability for harassment of a former employee

The Employment Appeal Tribunal (EAT) has recently considered whether liability for harassment transfers under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) where the perpetrator transferred to the transferee, but the employee alleging harassment did not.

The employee resigned and brought claims in the Employment Tribunal against his former employer for unfair constructive dismissal and harassment. Although both claims were brought against the former employer, they were based factually on harassment by the perpetrator, who was not a respondent to the claim.

The former employer argued that a subsequent transfer of the business under TUPE meant that the employment of the perpetrator had transferred to a new company and that, by virtue of TUPE, its liability for the employee's claims had therefore transferred to the perpetrator's new employer along with their employment. The tribunal dismissed this argument and upheld the employee's claims of unfair constructive dismissal and harassment.

On appeal, the EAT upheld the tribunal's findings. The employee's employment had not transferred to the transferee employer as he was not employed at the time of the transfer (having been unfairly dismissed before the relevant date). This being the case, liability for his dismissal and harassment could not have transferred.

The rights and obligations (the liability for harassment and unfair dismissal) arose in connection with the employee's employment contract with the former employer which had not transferred – the fact that the employment contract of the perpetrator had transferred to a new employer under TUPE did not change this.

Employees who are "assigned" to a business or service that is transferring will transfer under TUPE along with any rights and liabilities attaching to their employment. Here the employee was no longer employed at the time of the transfer, so did not meet this requirement.

It can be difficult in practice for employers to determine who is assigned to the business or service they are transferring. Determining who is assigned where employees are temporarily seconded, engaged by other group companies or spend time working for other parts of the business can be complex and unclear – in each case, it will be important to ascertain where their responsibilities are focused, and where and for whom, in the normal course, they carry out their duties.

GDPR for HR: 12 month glance back and look forwards

You can register now for our in-person "GDPR for HR" event in London, where we will look back at privacy developments over the last 12 months and at what is fast approaching – while considering the impact of all these changes on the processing of HR-related data. 

Did you know...

• Covert workplace monitoring can only occur in exceptional circumstances, for example where there is suspected criminal activity or gross misconduct.
• EU whistleblowing law has recently changed, impacting on the approach to receiving and investigating whistleblowing reports. Many businesses are updating their internal whistleblowing policies and procedures to comply with the EU Whistleblowing Directive, as well as resulting local whistleblowing law changes. Whistleblowing practices need to be compliant with local data protection laws and the UK/EU GDPR.
• A settlement or non-disclosure agreement, as well as employment tribunal proceedings and ongoing grievance processes, cannot override an individual's right to obtain a copy of their personal information. 
• While the EU AI Act will not apply in the UK, it will affect UK businesses operating in the EU, making it necessary to establish an AI governance programme in good time for the relevant legislative deadlines.
• Biometric data is not always special category biometric data – this is a fairly common misinterpretation of the provisions of the UK (and EU) GDPR on biometric data. Recent draft ICO guidance explains that the purpose for which an organisation uses biometric data is the determining factor in whether it is special category biometric data. The global brain-monitoring technology market could be worth $17.1bn by 2026, but it will bring ethical and legal challenges, including the risk of discriminatory practices and potential for privacy concerns.

At this seminar, we will be looking at these issues and others including the latest on data regulation, ICO employment guidance and overseas data transfers.