The New Employment Paradigm: a landscape of change, challenge and opportunity

Published 07 March 2019 by gunnercooke llp

Employment in the UK has long been a changing landscape, but it is arguably now facing the most significant technology-driven upheaval since the Industrial Revolution of the early 19th Century.

The rapidly advancing technologies of our time have permanently altered the way in which people communicate with each other and this has dramatically impacted the traditional workspace. The digital era has made the static office an obsolete concept, it has created entirely new industries controlled via smartphone apps, and it is increasingly posing questions about the very nature of work and how this is to be valued in a world that is poised for the onslaught of artificial intelligence.

From our perspective as specialist employment advisers, we are seeing a gradual splintering of the country’s workforce due to the erosion of the conventional legal relationship between employer and employee. It is an area of law that is straining to keep up with the sheer scale of economic change.

All of this means that employers must stay abreast of developments and acknowledge the inexorable shifts that are happening. Those that do so will survive and thrive, those that do not will increasingly find themselves left behind.

Social media encourages users to interact behind the safety of a screen, with many becoming keyboard warriors airing their grievances in what they perceive to be a private and informal space. However, what of the detrimental effect on companies’ reputations? In Creighton v Together Housing Association Ltd, an employee with nearly 30 years’ service was dismissed for gross misconduct when his employer discovered that he had made a series of offensive ‘tweets’ concerning the company three years previously. Mr Creighton’s unfair dismissal claim, arguing that his tweets were private, was unsurprisingly unsuccessful. How to handle, and in some cases restrict, the use of social media is an issue facing the many UK and international companies. The main issue being the inability to police the uniquely open, endless space that the online world has become. Companies are seeking to include social media into their existing disciplinary policies, with many taking the decision to create a separate social media policy altogether.

The prevalence of smartphones has meant that it is now entirely common for employees to record investigatory meetings, or less formal conversations, and then later seek to rely on these recordings at an employment tribunal. Companies cannot be expected to (and indeed shouldn’t) search employees before they commence a meeting. Whether these recordings can be admissible as evidence has been the subject of recent discussion. In Punjab National Bank (International) Ltd v Gosain, the employee’s covert recording of an investigatory meeting, recorded during breaks when the employer representative was absent from the room, was found to be admissible. Tribunals have wide discretion as to whether they admit covert recordings as evidence, and often will if the recordings are relevant to the case. Such covert recordings are likely to constitute personal data for the purposes of the General Data Protection Regulation (GDPR) and individuals need to consider carefully how they handle and use such data. In addition, the individual being recorded may find that their Right to a Private Life under Article 8 of the Human Rights Act has been infringed.

Artificial intelligence has caused many to be concerned about the replacement of manual labour jobs. Robotic vehicles are being brought in to do the job of a warehouse worker efficiently and for a fraction of the cost. We have already seen a decline in demand for customer service jobs to make way for the implementation of nation-wide self-service checkouts. Companies will need to consider investing in training for staff who carry out manual jobs with a view to transferring their skills if they are to be retained. The end goal for companies is to be more efficient in how they deliver products and services to the consumer and if that is by way of artificial intelligence replacing human capital then it poses very serious questions.

Black cab drivers have lobbied intensely over the past few years against the emergence of gig-economy platforms such as Uber. The Licensed Taxi Drivers’ Association estimates that the 25,000 black cab drivers in London have, on average, suffered lost earnings of £10,000 a year due to the emergence of Uber and similar platforms. The UK has seen a flood of litigation in recent years, specifically challenging the status of the gig-economy worker. As a result of the recent Uber litigation, Uber’s drivers were found to be workers, giving them rights such as minimum wage and holiday entitlements under the Working Time Regulations. Uber appealed this decision all the way to the Court of Appeal but was unsuccessful. At the time of writing, the subsequent appeal to the Supreme Court remains pending, however many will be surprised if the Supreme Court departs from earlier decisions. While the majority of consumers may welcome a modern and cost-effective method of travel against a more traditional model, issues such as work status and health and safety concerns over excessive hours worked continue to generate challenges and negative publicity for these innovative models.

What does all of this mean for the modern employer and employee? The answers are rarely simple. But what is clear is that employers must recognise the intensity of the economic changes and be prepared to continually review and adapt their business practices to retain relevance and a competitive edge within uniquely challenging market conditions. Employees, meanwhile, must also learn to embrace change and ensure that their skills evolve alongside advancing technology to ensure that they remain employable in today’s fast-paced and increasingly transitional workspace.