Musings of a futurist employment lawyer

I am a futurist enthusiast, which means that I am interested in all things artificial intelligence (AI), automation and “fourth industrial revolution” related.  I suspect that my interest is due to growing up in the 80s where movies such as the Terminator and Back to the Future reigned supreme.

I am currently working my way through, “The Future of the Professions” and although I am only at chapter 2, I am more convinced that the legal profession needs to adapt before AI make us obsolete.  Let’s just say we are living in exciting times!

With the above in mind, I am now on the look-out for areas of law which I feel need to be updated to be fit for this modern technologically-focused world.  The first area up on my one-woman task of future-proofing law is the witnessing of documents.

As you may know, there are times when you will need someone to witness you signing a document (e.g. in relation to entering into a mortgage deed or signing a will) in order for the agreement to be valid.  In the employment sphere, you may be required to have someone witness your signature when entering into an employment contract or settlement agreement which is a deed.

Recently a client, who was abroad, asked if I could witness him signing an agreement if we had a FaceTime video call.  This question had me flummoxed and I felt compelled to check what the law on the execution of deeds actually says.

The law

1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 and section 44(2)(b) of the Companies Act 2006, state the person signing the deed must do so in the “presence” of the witness.

Having regard to the Oxford Dictionary definition of being “present” this refers to being in a particular place.   Clearly, I was not in the same place as my client so I advised that he had to find someone else to assist.

However, is physical presence really necessary?  The aim behind this is to have someone who can confirm (if necessary) to a court that the individual concerned signed the document.  With video calling, document and screen sharing technology and encrypted signatures – surely it is now possible for a witness to provide such confirmation without having to be physically present.  It leads me to wonder if there would ever be a situation in which some form of AI would be able to satisfy the witnessing requirements?

In my practice, most agreements are now finalised electronically and I seldom have regular face to face contact with clients. Therefore, requiring someone to be physically present to witness someone to sign an agreement feels so yesteryear.

What are your thoughts?

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Algorithms, diversity and the tech industry – why we need to get this right!

I recently watched an excellent ted talk by Joy Buolamwini regarding her fight against algorithmic bias and why it matters.  Put simply, her talk considered the issues arising from a lack of diversity in tech e.g. that algorithms can exhibit unintended racial or gender biases of the largely White, Asian and male population of the tech industry.

Since we are in the midst of a fourth industrial revolution – with artificial intelligence at the core – we need to be able to trust in the veracity of the data produced by algorithms.  To minimise the risk of unconscious biases infecting the coding of algorithms, we need to ensure that there is diversity in the tech space.

James Damore (formerly of Google) complained in his now infamous memo that the focus on diversity in the technology sector is creating an “ideological echo chamber” and that Google’s programmes to increase diversity are politically driven and divisive. For instance, he referred to the fact there are biological differences between the genders which can provide a non-discriminatory explanation for the lack of female representation in tech.

In my view, it is imperative that tech companies focus on diversity so as to ensure that algorithms are fit for purpose. I do not want algorithms created to help sift through prospective job applicants to reflect the biased views of those who developed them e.g. weeding out women or those from certain ethnic or class backgrounds because of their perceived inferiority and I am sure I am not the only one. So while I am optimistic about the role AI will play in the future, we cannot ignore that algorithms will simply reflect the views of those who create them.  Therefore, it is of utmost importance that those who code reflect all of us – not only on the grounds of race and gender but on any other characteristics which are likely to shape how we interact with the world such as disability, age, class, sexual orientation, religion or philosophical belief.

Artificial Intelligence, automation and the future of work

You would be hard pressed not to have read an article or heard something about the rise of artificial intelligence and how we mere humans may render ourselves unemployable in the not so distant future.  I am not so pessimistic.  Having recently read Rutger Breman’s “Utopia for Realists”, I am persuaded by his argument that we lack the imagination at this stage as to the type of jobs people will be undertaking in the future.  Anecdotally, I do not recall ever hearing anyone at school talk about wanting to be a mobile app designer or Facebook advertising specialist (the defence rests).  However, I acknowledge that with the growing use of artificial intelligence and automation the types of work we are currently performing will soon need to change.

The International Bar Association has prepared a detailed report entitled, “Artificial Intelligence and Robotics and their Impact on the Workplace.”  At a whopping 120 pages this report is certainly not a light read but it does provide some thought-provoking insights.

Reports are suggesting that AI has a 50% chance of outperforming human performance in all jobs by 2045. Further, in the 2013 paper entitled: “The Future of Employment: How susceptible are jobs to computerisation?”, the authors contend that it is not only routine cognitive tasks that are at risk (e.g. telemarketers, secretaries and switchboard operators) but also roles which require “subtle judgement”.

So how can we “AI” proof our careers?  My view is that nowis the time that we give both emotional intelligence (EQ) and social intelligence their due reverence. Given that at some point it is expected that AI will be able to outperform any human’s analytical skills (IQ), this is not the case when it comes to interpersonal skills such as empathising, social understanding and persuasion (well at least not yet).  So while I am seeking to learn how to code (if you can’t beat the machines and all that) I will also be working on my leadership and other social skills in order to remain competitive in this ever-changing job market.

 

Diversity in the workplace series: 4 reasons why we shouldn’t ignore social class

The British class system is alive and well; it just continues to evolve. Traditionally there have been 3 social classes in the UK: (i) working class; (ii) middle class; and (iii) upper class.  Whereas perhaps 50 years ago we had a rather static view on class; in 21st century which group one belongs to now means different things to different people.  In fact, according to Professor Savage from LSE, the three-tiered class structure is now obsolete and there are 7 social classes ranging from Precariat (the poorest and most deprived social group) to the Elite (the wealthiest and most privileged group).  There is a social class calculator which can be used to determine what group you belong to.

Why does this matter?

Class is currently not a protected characteristic under the Equality Act 2010.  This is despite research suggesting that social class discrimination is rife. Yet there does not appear to be any public appetite for a legislative change.  Despite this, I set out below 4 reasons why I we believe that we need to tackle social class diversity in the workplace.

4 reasons why we shouldn’t ignore class when considering diversity in the workplace

  1. Because it makes good business sense: It is now considered a truism that diversity in the workplace is a good thing.  According to the Work Foundation, it can lead to improved performance, improved employer image, improved brand awareness, an increase in creativity and innovation, as well as providing an environment where customers feel at home.  All of the above is deemed to give diverse organisations a competitive advantage.  So if we recognise that diversity as a concept is good, there is no reason not to include different social classes into the mix.
  2. Because it has a big impact on job prospects and career development: According to Mr Savage’s research, Elites unsurprisingly dominate high-paid jobs. For instance, research has shown that in 2014 70% of jobs offered at top law, finance and accountancy firms were given to individuals who were privately educated.  Further, it is not only that the Elites dominate in highly paid jobs; their children tend to earn more in the top industries than those whose parents were not in high-salary jobs.  So even if someone from a lower socio-economic class is able to get a seat at the table with their Elite counterparts, they will be less well fed.
  3. Because it is self-perpetuating: According to a 2010 report by the Organisation for Economic Cooperation and Development (OECD), the UK was one of the worst countries for certain measures of social mobility; with parents’ wealth being a strong influencing factor on a child’s prospects of higher education and a good salary. If we wish to encourage social mobility, we cannot ignore the impact of a person’s class.
  4. Because we are limiting innovation: Given that research indicates that  unconscious biases infect recruitment processes, I suspect that a number of talented individuals are not being recruited or promoted because of their perceived social class.  Do we automatically discredit someone who speaks with a regional dialect or uses slang as part of their vernacular as lacking the necessary skills to perform a role? If so, are those implicit judgements valid and/or credible?

Summary

Whilst I believe a diverse workforce on the grounds of social class would be good for business, we also cannot ignore the social implications. Employment plays a vital part in social mobility as well as a person’s wellbeing and self-esteem.  Given that the gap between rich and poor in the UK continues to widen, if we do not start to take class issues seriously we could end up living in a very divided Britain.

Absent without leave….

Sorry I have not posted a blog in a while but who can believe we are already in the month of May?  When I am not writing here, please do check out Hine Legal’s newsletter as I am regular contributor there.  I can also be found on Twitter, LinkedIn and now recently, Instagram.

My inability to post regularly has not been due to a lack of activity.  I set out below a flavour of the things I have been up to:

  • I attended the Agile Working Event where one of my fellow partners, Jane Wheeler, gave a very interesting presentation on what is meant by “agile working” and why it benefits employers as well as employees;
  • I provided an Employment Law Clinic at Wayra UK’s clinic to its current cohort. For the uninitiated, Wayra UK (which is part of Telefónica’s Open Future) is a leading start-up accelerator. Offering SMEs with guidance on employment law is a key interest of mine and in addition to running another session at Wayra’s swanky offices in June, I will also be giving a talk for the Institute of Directors Youth forum on such issues in October.
  • I was recently speaking about all matters Agile Working related on the People Platform show, Channel radio. I really enjoyed the experience and hope to be able to do more of this in the near future. If you are not clear on the distinction between flexible working and agile working – please review my article on this.
  • Upcoming: I will be speaking at Silver Shemmings breakfast seminar on 16 May about Employment Law Considerations relevant to the construction industry. If you would like to attend please do as it’s free.  Please click here for further details.

I will be posting a 5 part series on diversity in the workplace, which is an area that I am very passionate about. It is my position (perhaps unsurprisingly for an employment lawyer) that diversity in the workplace is a good thing but that we tend to have quite a straight-jacketed view as to what a diverse workplace looks like.

The 5 part series will look at the following:

  1. Class;
  2. Disability;
  3. Ethnicity;
  4. Gender; and
  5. Personality type.

I’ll be publishing my thoughts on class in the workplace next Monday.   In the meantime, what social class do you think you belong to?  I attach a link to a social class calculator which I shall discuss in the upcoming blog post.

Until the next instalment.

Fudia

Personality tests and employee engagement -four reasons to give personality tests a try

I am a fan of personality tests and often use them as a personal development tool.  However, they are maligned by some due to their apparent lack of scientific rigour. In my attempt to encourage their use, I contend that from an employee engagement perspective, they can be helpful for the following four reasons:

  1. Encouraging self-awareness: According to Forbes, “employee engagement” is the “emotional commitment the employee has to the organisation and its goals”. In my view, an employee needs a certain level of emotional intelligence to determine their motivators.  Personality tests ask thought provoking questions – which even if you do not agree with the final conclusion of the test – provide an opportunity for introspection and an assessment of one’s own strengths and weaknesses.
  2. Career development: This goes hand in hand with the above point.  With self-awareness goes the ability to take control of one’s career rather than just being lead by chance and circumstance and with however an employer sees fit.
  3. Strengths based team structures: Some organisations are using personality tests to ensure that team members are working in a manner which best uses their strengths. For example, there is a personality test model by Talent Dynamics which focuses on looking at the core strengths of each individual to determine how their skills could be best utilised within a team structure. Enabling staff to work “in flow” i.e. where they are fully engaged as much as possible, will clearly assist in creating healthy work environments.  This will, in my view, clearly have a positive impact on organisational productivity.
  4. Reducing workplace conflict: Many personality tests recognise two key temperament types: extroverts and introverts.  Succinctly put, extroverts draw energy form the world around them and therefore typically enjoy social interaction and teamwork.  Conversely, introverts draw energy from their own personal worlds and can therefore prefer solitude and working alone. This difference can create tension in workplaces where either the extrovert or introvert does not feel that their needs are being met.  Therefore, an awareness of an employee’s preference for extroversion or introversion can help reduce workplace conflicts.  For instance, the  extroverted manager who may enjoy lots of team meetings will perhaps be more sensitive towards one of her introverted colleague’s need for more alone time without taking offence.

I am not suggesting personality tests are full-proof nor would I advocate for them to be used as recruitment tool for determining who should be appointed.  Instead, such tests can be used as part of the  on-boarding process when hiring new staff, or on a periodical basis such as at appraisals or promotions to see if people’s preferences have changed over time.

I would recommend that everyone take at least one personality test in life – even the greatest cynics.  At worse it could be a waste of 15 minutes whereas the benefits of better self-awareness could be manifold.

So try one –I would love to know your results!

 

Is politics the new office taboo?

At present political life is very binary: either you are a Remainer or Brexiteer, a fully-fledged member of the Alt-Right or a Social Justice Warrior.

For example, the EU Referendum result has highlighted huge divisions in the UK on a number of grounds including but not limited to age, social class and educational background. In fact families have been divided based on how members voted. President Trump’s Executive Order to suspend its refugee programme and ban entry to persons from 7 mainly Muslim countries is having a similar impact. Those in favour of the Executive Order are being accused of islamophobia and those against of not caring about national security: there is no room for grey.

Given the nature of the political discourse at the moment it is not difficult to envisage such debates creating issues in the workplace. For example, heated discussions on immigration and national security could lead to complaints of harassment, bullying and discrimination on the grounds of religion or belief contrary to the Equality Act 2010.

Further the law changed in 2013 so that no qualifying length of service is required by an employee who is dismissed because of (or the principal reason for dismissal is) their political opinion or affiliation. Will we see an increase of claims brought on this basis?

Consequently, not only can heated political debates create unhappy work environments; they can also lead to employment claims.

So what can employers do to minimise the risk of such disputes arising? I would recommend the following:

• Reminding staff of acceptable workplace behaviours: In addition to Disciplinary and Grievance procedures, staff should be required to review Equal Opportunity, Email/Social Media and Anti-bullying and Harassment policies. If no such policies exist they should be implemented. Employers should also offer training on these policies/procedures to ensure that all staff understand their contents to aid compliance.
• Effective use of such policies: In order for employers to be able to defend themselves from claims of discrimination on the grounds of vicarious liability, the above-mentioned policies need to be actually used. For example, if, an employer becomes aware of a member of staff posting an offensive message on social media which could bring it into disrepute, action must be taken (in accordance with the relevant policies) in a timely manner.
• Consistency is key: Further to minimise the risk of complaints of unfair treatment, employers need to ensure that they respond to all complaints in a consistent manner e.g. in accordance with the relevant policies.

So while we live in a period of peak political polarisation, staff should be reminded that in a work context they must exercise their freedom of speech judiciously. Otherwise this could lead to a spike of politics-related employment disputes.

November thought piece: Clinton, Equal Pay and Gender Equality

Hilary Rodham Clinton – arguably the most experienced presidential candidate of all time lost to Donald Trump, a man who has no political or military experience, which is a first for a US president. On this side of the Atlantic, we celebrated or should I say commiserated Equal Pay Day on Thursday, 10 November. This is the day from which full time female employees are essentially working for free until the end of the year due to the gender pay disparity.

At a recent senior women’s breakfast event, I reflected with some of the attendees on the barriers that continue to hinder women from: (i) progressing to senior positions within organisations; and (ii) being fairly compensated. I was informed of the concept known as “glass wall” effect, which is similar to the “glass ceiling” although its focus is on the barriers that prevent women from moving to positions that have a promotional ladder. Simply speaking, whereas the glass ceiling boxes women into certain roles, the glass wall works laterally and blocks the opportunity for women to be promoted in the first place.

I suspect that the glass walls, ceilings and other transparent structural barriers are the reason why women continue to be paid less than their male counterparts and why Mrs Clinton is not currently the US President-Elect. For instance, some of the criticisms I have read about Mrs Clinton are that she is “cold”, “aloof” and has a “shrill” voice. Would a man have been criticised for being cold/aloof or would he have been viewed as statesmanlike? It’s my belief that such criticism is in part due to unconscious bias and the certain expectations we have on both genders which can prove very difficult to overcome. Perhaps this is the reason why narrowing the gender pay gap remains such an arduous task.

The other elephant in the room as to female advancement is the issue of pregnancy and maternity leave. According to the Fawcett Society, the pay gap widens for 12 years after a woman gives birth. Many women also feel that if they want to have a fulfilling family life they cannot do this while also juggling a successful career. There are no easy answers to this issues. In my view, gender pay reporting while helpful will not be the magic bullet to eradicate gender pay disparity. This will not occur until we, as a society, have a honest conversation about the roles we have assigned to each gender and in particular the notion that being a parent is to be a female led role.

Redundancy -What to expect from the process

I set out below advice for employees on dealing with the dreaded redundancy notification.

1. Being notified – what to expect: You may be called into an impromptu meeting, usually with your line manager and a member of the HR team. It is customary not to give much notice of this first meeting, as employers usually want it to be brief (the period before the employee has been able to get used to the idea is the most awkward). You should be given a letter which: (i) sets out why your role is at risk of redundancy; and (ii) invites you to a consultation meeting. This is known as the “at risk” letter. At this stage, you are only at risk of being made redundant and no formal decision will usually have been taken (although employers will sometimes dispense with a full redundancy procedure if the employee in question has less than two years’ service).

2. The purpose of the consultation meeting:

This is your time to ask questions such as:

• Why was my role selected for redundancy?
• What selection criteria, if any, were used in determining who should be placed at risk? If you do not perform a unique role, your employer should have used objective selection criteria to determine who should be put at risk of redundancy. You are entitled to review your scores against these criteria, but employers are normally reluctant to disclose the scores of other employees, at least without anonymising these.
• What alternatives were considered instead of making my role redundant?
This meeting should also provide you with an opportunity: (a) to find out more about the proposed re-organisation, including what other roles might be available and which roles will have which responsibilities; and (b) to ask about any suitable alternative vacancies available at your employer or any associated employer. You should have a list of questions prepared in advance of any consultation meetings, as well as any suggestions you have on how your redundancy might be avoided.
After the meeting any points you made should be considered and you should be given the option of applying for any suitable roles you have said that you are interested in. The formal decision to make you redundant should only be taken after these things have happened and will usually be confirmed at a second consultation meeting.

3. Who can I bring? Employees are only legally entitled to be accompanied by a colleague or trade union official to the final meeting described above. However, many employers allow employees to be accompanied at each stage of the redundancy procedure, so you should check what your employer’s policy is. You have no right to legal representation at these meetings.

4. Take notes: Take notes during any meetings, as what is discussed could assist you later. For instance, your employer should not state that you will be made redundant until the end of the procedure. If it does, you may be able to argue that the decision to make you redundant was pre-determined and that the procedure followed was a sham. This would render your dismissal unfair, if you had more than 103 weeks’ service at the point when your employment formally terminated.

5. What will you receive? If made redundant, you will be entitled to a statutory redundancy payment calculated by reference to your age, length of service and weekly pay, although the weekly pay for these purposes is currently capped at £479. You will also be entitled tyo your notice pay (although you may be asked to work this out) and to any other contractual entitlements due to you, such as accrued but untaken holiday pay. Some employers offer enhanced redundancy packages, although they usually require employees to enter into a settlement agreement waiving any claims. For such an agreement to be legally binding, the employee must first obtain advice from an independent lawyer on its terms and effect. Employers usually pay a contribution towards the cost of this.

If you unfortunately find yourself receiving an at risk letter, please feel free to contact me as I have a wealth of experience in advising on redundancies and settlement agreements.

 

 

This material does not give a full statement of the law.  It is intended for guidance only  and is not a substitute for professional advice. No responsibility for loss occassioned as a result of any person acting or refraining from acting can be accepted by Fudia Smartt or any other organisation which may publish this article.

Sickness and Statutory Sick Pay

The clocks have turned back, the weather is colder and the skies are greyer. While many may be excited by the fact that we are now less than 8 weeks away from Christmas, personally I am dreading the onset of the cold and flu season.
Many employers, particularly business start-ups, are unclear as to their obligations to provide staff with Statutory Sick Pay. I set out below a summary of the legal position.

Q: Do I need to provide Statutory Sick Pay to staff?

A: It depends. Under English law, employees may be entitled to Statutory Sick Pay (“SSP”), or the equivalent occupational sick pay – which their employer provides, if they meet the qualifying conditions. The current rate of SSP is £88.45 per week.

What are the “qualifying conditions”?

1. The individual must be classed as an employee

Only employees are entitled to SSP. In summary, there are three different categories of staff – employees, workers and the self-employed. Employees are afforded the most rights and protections in law, including the provision of SSP. An employee is a person who has entered into a contract of employment, which is defined as contract of service or an apprenticeship (s.230 Employment Rights Act 1996).
Determining whether an individual is an employee as opposed to a worker or self-employed is often not clear cut. However, there are certain guiding principles from case law regarding who is an employee, namely:
• there must be a contract between the employer and the employee (whether written or oral);
• there needs to be mutuality of obligation – i.e. the individual be obliged to carry out work provided to them and the employer obliged to provide work;
• the individual be subject to control by their employer (e.g. how, where and when they carry out work);
• the work must be personally performed by the individual who is not in business for their own account.

For the purposes of SSP, the definition of “employee” is wider than the normal employment law tests, and includes all those whose earnings are liable for Class 1 National Insurance contributions. As a result, agency workers are deemed to be employees for these purposes and can claim SSP. Also, workers on zero hours contracts will be entitled to SSP (should they meet the other qualifying conditions). However, there are certain exceptions: Women on maternity leave who are receiving Statutory Maternity Pay or Maternity Allowance are not entitled to SSP.

2. The employee must have done some actual work for the employer

Although qualifying employees will be entitled to SSP from day one their employment, they will need to have completed at least one day of work to qualify. The entitlement to SSP starts from the 4th consecutive day of sickness absence.

3. Been ill, sick or injured for at least 4 days in row

To be eligible to claim SSP, an employee must have been prevented from working for at least 4 days in a row (including non-working days) due to sickness or a disability which has rendered them not fit for work.

4. Meet the earnings criterion

An eligible employee must earn at least the current Lower Earning Limit (presently £112 before tax per week). This is calculated by reference to an employee’s average weekly earnings over the previous eight week period.

5. Not have exhausted their entitlement to SSP

Employees are entitled to up to 28 weeks of SSP in any period of incapacity for work. Periods of incapacity are linked where they are less than 56 calendar days (eight weeks) apart. The impact of this is that an employee will not be entitled to SSP if they have a continuous series of linked periods of sickness absence that last more than 3 years.

Practical notes for employers

• As mentioned above, determining employment status can be difficult. To complicate matters further, it is possible for an individual to be deemed to be an employee for employment purposes while also considered self-employed for tax purposes. If in doubt, seek legal advice given the possible legal and tax implications.
• SSP is only payable for qualifying days. Such days are agreed between the parties and usually set out in the contract of employment. In the absence of such agreement, this will be the days which the employer and employee agree are or were working days for that week.
• The payment of SSP is subject to PAYE and NI contributions deductions and these must be recorded.
• Any dispute as to whether an employee is entitled to SSP will be determined by HMRC and not an employment tribunal.

Fudia Smartt
Partner – Hine Legal: specialist solicitors in employment law

At Hine Legal we provide clear advice without legal jargon. Our clients come to us for help with strategy and advice on how to grow their businesses – not just when they have an employment problem. We give our opinion and recommend a course of action; we don’t just sit on the fence.
If you have any employment law query then please get in touch: solicitor@hinelegal.com (0203 008 5718)