Employment Rights Bill: update

The Government has proposed a number of amendments to the Employment Rights Bill (ERB), the most significant one being the proposal to extend time limits for employment tribunal claims from 3 months to 6 months. This proposal was originally featured in Labour's Make Work Pay Manifesto but the proposal did not make it into the Bill as originally drafted. On the basis that it reflects a manifesto commitment, we think it likely that this measure will become law. 

A number of other amendments have bene proposed in relation to the zero hours provisions but due to their technical and complex nature, we do not propose to highlight these here. 

The Regulatory Policy Committee (a Government advisory committee), has described the Impact Assessment carried out in respect of the ERB as not fit for purpose. Essentially, the RPC has expressed the view that the Government has failed to conduct a proper assessment of the benefits and business impact of legislating for the changes it has set out. However, as the RPC is only advisory, this will not affect the passage of the Bill but may affect how debates play out during the passage of the Bill.

Platform Workers' Directive

The Platform Work Directive was published in the Official Journal on 11 November 2024. Among wider employment measures, it introduces new rules on algorithmic management and data protection measures for platform (gig) workers. It prohibits digital platforms from processing data on workers' emotional or psychological state or data that could infer sensitive information. Biometric data processing is only allowed for authentication and platforms cannot contact personal data when the person is not performing platform work. Workers cannot be fired or dismissed based on algorithmic or automated decisions. Human oversight is required for important decisions affecting platform workers. The Directive came into force on 1 December 2024 and must be transposed by Member States by 2 December 2026. Read more.

AI recommendations for developers 

Having audited providers and developers of AI tools for recruitment, the ICO recently published a report summarising its key findings. It made nearly 300 recommendations to AI developers as AI tools audited were:

• not processing personal information fairly, so allowing recruiters to filter out candidates with certain protected characteristics such as gender and ethnicity. The ICO instructed these providers to collect accurate information directly from candidates and ensure that regular checks are in place to monitor and mitigate potential discrimination. 
• collecting far more personal information than necessary and retaining it indefinitely to build large databases of potential candidates without their knowledge. The ICO recommended that all candidates must be provided with transparent privacy information, including a clear retention period. 

The ICO then followed up with the organisations and confirmed that its recommended actions were implemented. Other recommendations to improve compliance, all of which were accepted, included:

• processing personal information fairly in the AI
• explaining the processing clearly
• keeping personal information collected to a minimum
• not repurposing or processing personal information unlawfully
• conducting risk assessments to understand the impact to people’s privacy.

The report also provides examples of good practice, case studies and lessons learned for both AI developers and recruiters. 

Compensation uplift for breaches of Code on dismissal and re-engagement 

Following the introduction of the statutory Code of Practice on Dismissal and Re-engagement last July an accompanying Order will come into force on 20 January 2025. From this date, in a claim brought by affected employees or their representatives, where it appears to an employment tribunal that the Code applies and the employer or employee has unreasonably failed to comply with it, compensation can be increased or reduced by up to 25%. Any employment tribunal awards made under the Code prior to this date, won't be subject to the Order.

Sexual harassment preventative duty – EHRC checklist

The EHRC has published a new Checklist which provides useful pointers to assist managers when they are considering how to comply with the new duty to take reasonable steps to prevent sexual harassment. It is designed with the hospitality sector in mind, with questions and templates geared towards workplaces where shift patterns occur. One example of reasonable mitigation at events where there is a large social gathering where workers may be vulnerable to sexual harassment, would be for people to work in pairs, and for managers to check in with staff periodically at the start and end of shifts.

Forthcoming immigration changes

January 2025 marks some further significant immigration changes: 

• eVisas: From 1 January 2025 the UK will fully switch from Biometric Residence Permits (BRP) to an eVisa status to prove a visa holder's right to live, work, and rent in the UK as well as to travel in and out of the UK. BRP card holders must actively apply for and obtain their eVisa before the end of December. Detailed information can be found on our webinar recording, our e-alert (Home Office eVisa Portal opens to all BRP card holders) and the Home Office portal.
• ETA: On 27 November the Electronic Travel Authorisation (ETA) scheme expanded for applications from eligible non-Europeans (including those from the USA, Canada, Australia) for mandatory ETA approval in advance of travel to the UK from 8 January 2025. For more detail see our article 'The expansion of Electronic Travel Authorisations'.
• More visa changes? On 28 November 2024, the Prime Minister announced forthcoming measures to reduce immigration including the imminent publication of a White Paper, (more) reforms to the points-based system, and new expectations for visa applications regarding training of domestic workers. No details have been published yet but this comes hot on the heels of wide ranging changes in April 2024. See 'UK Immigration changes on 4 April 2024 – the latest details'.

For further details on these or other immigration queries please contact either Vikki Wiberg or Charlie Pring.