Written submission from Professor Lina Dencik, Jessica Brand, Prof. Rosalind Gill, Dr Dimitrios Kivotidis and Dr George Musgrave, Goldsmiths (ERB0049)

Response to call for evidence
 

Business and Trade Select Committee
 

Inquiry: Make Work Pay: Employment Rights Bill

6 December 2024

The following submission represents the collated views of academic experts at Goldsmiths, University of London, with a focus on Artificial Intelligence (AI), social justice and the Creative Industries (CIs).

Lina Dencik is a Professor and University Research Leader in AI Justice at the Department of Media, Communications and Cultural Studies (MCCS). Lina is a Co-Founder/Director of the Data Justice Lab, extensively researching the relationship between digital media and social change with a focus on the politics of data and AI, including AI technology’s impact on jobs and workers.

Jessica Brand is a Research Assistant to Prof Dencik, supporting work in the area of AI Justice.

Rosalind Gill is a Professor and University Research Leader in Inequalities in the Creative and Cultural Industries at the Institute for Creative and Cultural Entrepreneurship (ICCE) and MCCS. She has conducted extensive research in precariousness and inequality in creative occupations, making substantial contributions to this area.

Dr Dimitrios Kivotidis is a Lecturer at the Department of Law, whose research focuses on the impact of crisis legislation on fundamental rights, on the relationship between rights and social change, as well as on the relationship between constitutional law and political economy.

Dr George Musgrave is a Senior Lecturer in Cultural Sociology and Creative Industries at ICCE. His specialism concerns the psychological experiences and working conditions of creative careers, with a focus on mental health and wellbeing in the music industry. George's research led directly to the establishment of a 24/7 mental health helpline for musicians - Music Minds Matter - in 2017.

The response below addresses the following questions:

• Does the Employment Rights Bill adequately safeguard the workers it seeks to protect?
• Are there weaknesses or loopholes in the Bill that could be exploited or have unintended consequences?
• Are there areas of employment law not covered by the Bill that weaken workers’ protections?

Does the Employment Rights Bill adequately safeguard the workers it seeks to protect?

8. It is recognised that the Employment Rights Bill (ERB) constitutes a ‘serious attempt to engage with some of the most difficult issues of labour market regulation’[1] and represents ‘the biggest upgrade in employment rights for a generation’, as the government claims. However, this speaks volumes not to the Bill’s groundbreaking nature in advancing the rights of employees but to the dire state of employment rights in the UK since the 1980s. The ERB is still below what is required for the effective protection of workers and is not groundbreaking, as it does not contest the main tenets of labour market deregulation. Nor is the Bill forward-looking, as it fails to register outstanding issues pertaining to algorithmic management and the advent of Artificial Intelligence (AI).

Zero-hour contracts

9. The Bill seeks to introduce stronger protections for workers, particularly in relation to job security and workplace conditions, including ensuring that zero-hours contracts are more tightly regulated and offering more stability to over a million workers currently on such contracts. Although this certainly goes some way in achieving the government’s aim to ensure that all workers—regardless of their employment status—receive fair treatment, protection from exploitation, and greater security in the workplace, it arguably falls short when it comes to addressing the additional insecurity workers face when subjected to algorithmic management.

10. This is especially the case in gig economy work, and while it is very common for these workers to be put on zero-hours contracts, the precarity they face is also exacerbated by structural social inequalities. Disabled gig economy workers, for instance, face several challenges around task and platform accessibility, as well as around performance monitoring and evaluation, which are said to ‘stem from platforms being structured in ways that penalise disabled workers[2]. Here, algorithms that are used to manage employees pose new challenges for disabled individuals to successfully maintain a job and can shift accountability away from employers to provide workplace accommodations[3]. Regulation of zero-hours contracts is welcome, but, in this respect, it is not sufficient to address some of the structural harm and barriers experienced by disabled workers or other marginalised groups.

Pay transparency

11. Workers in a wide range of traditional sectors also face precarity as automation and algorithmic management produce insecure and unstable working environments. For example, in research we have carried out with workers in postal work and call centre work, we found that digital tracking and monitoring of workers’ productivity generates ‘scores’ that are used to determine bonuses within organisations, and there are plans to link postal workers’ productivity scores to basic pay at Royal Mail. The use of data scores as a proxy for worker productivity creates significant precarity, as well as financial and psychological stress, for affected workers, who are often already on low wages.

12. This could potentially be addressed by the Bill as it currently stands. For example, there are plans to change the remit of the Low Pay Commission so that it must take into account the cost of living when setting the minimum wage, and the Bill also aims to legislate against pay discrimination by requiring employers to justify significant pay differences between employees doing similar work. However, workers affected by unfair pay discrimination would further benefit from a provision that explicitly prohibits workers’ data scores – as a proxy for productivity – to be linked to, or determining, pay.

Fire and rehire

13. The Employment Rights Bill bans fire and rehire practices in all but the most extreme circumstances, meaning employers cannot sack employees and rehire them on worse terms and conditions. There will be exemptions however; for instance businesses at risk of complete collapse may be able to alter terms and conditions. This is a welcome protection, but our research indicates that again this may not adequately protect workers especially given the exemption. At Royal Mail, digital tracking enables senior management to label certain ‘slower’ workers as ‘not fit for purpose’ and then to fire these workers and either replace them with younger or agency workers or rehire them on worse contracts. According to postal workers, this has been done under the rubric of financial necessity and efficiency and given the decline in letters and bleak economy outlook for Royal Mail, it is conceivable that employers here would seek to apply the exemption to their firing and rehiring practices, despite the significant injustice this clearly entails. In this respect, this exemption could allow a continuation of the very practices the Bill seeks to prohibit.

Unfair dismissal

14. Another important safeguard is that workers will automatically qualify for protection against unfair dismissal from day one – a benefit for 9 million people. Previously, employees must have been at their place of work for at least two years in order to qualify. This is an important change and could improve workplace democracy and fairness in work affected by algorithmic management techniques. For example, the use of facial recognition technology by Uber (though other couriers are also planning to implement this technology) has led to several unfair dismissals[4], with the technology unable to adequately recognise people with darker skin.

15. In the Bill there are currently specific provisions for dismissals during pregnancy and dismissals following a period of statutory family leave. The Bill could be improved by explicit provisions that protect workers from dismissals pertaining to algorithmic management and similar technologies, such as facial recognition, as it is widely acknowledged that this technology is flawed in numerous ways, including being racially discriminatory. Further, our research has found that in other sectors workers can be ‘performance managed out’ through the use of tracking and monitoring systems that give employers unjust grounds to dismiss workers. For example, ‘slower’ and ‘older’ postal workers and call centre workers have experienced this kind of treatment.

Collective employment rights

16. The Bill is mostly focused on individual employment rights, aiming at protecting –

not without loopholes, as our submission shows – employees from zero-hour contracts and ‘fire-and-rehire’ practices, but it is certainly weaker and rather limited on collective employment rights, such as industrial action and collective bargaining.

17. In other jurisdictions, collective labour rights, such as the right to unionise or the right to take industrial action, assume a special social significance owing to the recognition of their participatory-democratic dimension.[5]

18. However, since the 1980s the strategy of de-democratisation and deregulation of labour relations has been a dominant element in successive Governments’ wider strategy of restructuring the labour market and providing the foundations for an economic constitution that would promote economic growth ‘by preventing trade unions from deploying their political power to secure legislation that would otherwise interfere with the spontaneous order of a free labour market’.[6]

19. The restriction of the right to take industrial action began with the Employment Act 1980 which imposed restrictions on secondary action and continued with the Trade Union and Labour Relations (Consolidation) Act 1992, section 224 of which rendered secondary action unlawful. The restriction of industrial action, even in furtherance of a trade dispute between employees and their own employer, continued with the Trade Union Act 2016[7] and the Strikes (Minimum Service Levels) Act 2023[8].

20. It follows from the above that, even though certainly very welcome, the repeal of the ballot thresholds imposed by the Trade Union Act 2016 and the complete repeal of the Strikes (Minimum Service Levels) Act 2023, are not adequate measures for a full protection of employees’ rights to take industrial action. Only a full repeal of the anti-union legislation of the 1980s and 1990s would bring the UK law on industrial action ‘into line with the international laws (of the International Labour Organisation (ILO) and the European Social Charter) which Britain has voluntarily ratified and agreed to be bound by’.[9]

21. The Bill fails to redress the UK’s non-compliance with international law on industrial action, in particular, the ban on sympathy action, which has been criticised by the ILO since 1989 and, most recently, last year in its report on the P&O Ferries scandal. As a result, the breaches of international law will continue so long as the legal restraints on trade union action continue. Last but not least, two further very important commitments originally found in ‘Labour’s New Deal for Working People’, namely the commitment to secure workplace balloting and the rollout of sector-wide collective bargaining in all areas of the economy, have been abandoned (with the exception of school support staff in England and adult social care).[10]

22. We arrive at the conclusion that the Bill is not very effective in adequately protecting workers since it fails to consider what workers need, that is to have a real say over the pay, terms and conditions on which they work. In other words, they need stronger unions and collective employment rights to counterbalance the monopoly force of the employers. For trade unions, the sole representatives of workers, to effectively represent their members’ interests they need the power to organise industrial action and compel employers to bargain with them. The Bill, in its current form, does not effectively provide workers and their unions with that power.

Consultation rights

23. Our research shows that a key issue in relation to algorithmic management is a widespread lack of worker and union consultation prior to implementation of new technologies. Yet although the bill includes stronger rights around union recognition and representation, it falls short on more direct forms of worker representation such as worker councils, worker management roles, and formal consultation rights for workers themselves. For example, call centre workers and postal workers feel that union representation is limited when it comes to addressing or preventing some of the harms that are produced by deployment of algorithmic management techniques; this is because unions are seen as slow to react and unreliable. Instead, workers want direct and regular consultation with their employers.

Are there weaknesses or loopholes in the Bill that could be exploited or have unintended consequences?
 

24. There are four potential loopholes in the Bill that could weaken workers’ protection:

1. The Bill intends to address the practice of ‘fire and rehire’ and ‘fire and replace’. The provisions in cl. 22 appear to impose a ban on such dismissals. However, they must be read together with s.104l(4) of the Employment Rights Act 1996. The latter provides a narrow gateway for employers to avoid automatically unfair dismissal if they can persuade a tribunal that the reason for the dismissal was to “significantly mitigate” the effect of any financial difficulties affecting or likely in the immediate future to affect the business.[11]
2. Cl. 46 provides that a trade union will be able to ask an employer to enter into an access agreement. If the employer refuses, the union can complain to the Central Arbitration Committee (CAC) which can effectively impose an access arrangement. However, if the employer refuses to observe an access agreement or fails to comply with an arrangement imposed by the CAC, there is no way through which the employer can be compelled to comply. The union can make another reference to the CAC to have a civil (financial) penalty imposed on the employer, but this is payable to the government not the union.[12]
3. The Bill fails to address a fundamental imbalance of power regarding the issue of remedies. While trade unions can be restrained by injunction when they break the law, there are no corresponding remedies addressed at employers when they do the same. This could limit the effectiveness of workers’ protection as it will be possible for employers to choose whether to obey the law, or to buy themselves out of trouble if they decide not to do so.
4. By failing to adopt a single framework on employment status, the Bill risks creating various gaps in its enforcement. It is a pre-condition of all the new rights that the individual is a “worker”, defined in accordance with s.230 of Employment Rights Act 1996.[13] This is a problem particularly for those on zero hours contracts or arrangements because the fact an individual works only intermittently or on a “casual” basis may mean they are not sufficiently subordinate while working to be considered a worker.[14] Another gap is the exclusion of agency workers who frequently work under zero hours contracts, are often low paid, suffer significant disadvantage in the labour market and often fail to receive the legal entitlements they do have.[15]

Are there areas of employment law not covered by the Bill that weaken workers’ protections?

Technological development and workplace democracy

25. In our view, the Bill in its current form neglects the main challenge currently facing the employment rights, namely the effect of digital technologies and AI on labour relations and working conditions. What is more, the Bill’s embeddedness in market logic (manifested in the focus on ‘growth’ and ‘productivity’) raises concerns about the current government’s intentions to take legislative initiatives to address this challenge.

26. More and more companies use wearable work instruments that enable registering their employees’ movements and location minute by minute, and analyse the data collected by means of AI to assess productivity.[16] For instance, the Amazon warehouse monitoring system has been emblematic of authoritarian practices, featuring the constant monitoring of workers with vibrators indicating their location and movement, and generally associated with de-skilling and full supervision.[17] It is now generally accepted that too much monitoring creates stress, fear, and incentives to ‘beat the system’ by breaking safety rules and not taking mandated breaks.[18]

27. The term ‘technological authoritarianism’ has been used to denote the technological governance model where the employer enjoys an unrestrained power to control the design, use, and organisational integration of technology in the workplace.[19] It follows that the democratic deficit in the workplace has already had adverse effects on human dignity through the increase of exploitation and alienation in the workplace, as workers are subjected to constant surveillance (even outside the workplace) and become mere ‘cogs’ in the business process.[20] This technological authoritarianism is strengthened by a narrative which presents the employer as moderniser and the employees as neo-Luddites. This narrative, influenced by market rationality,[21] has been instrumentalised in the UK since the 1980s and the Wapping Dispute[22] and reflected in law in the Creswell judgment which established broad scope for managerial prerogative on the introduce of new technology at work.[23]

28. The same narrative sees regulation of digital platforms as inhibiting innovation and resulting in a competitive disadvantage of the UK vis-à-vis other countries.[24] We would like, however, to alert the Committee to the fact that regulation does not necessarily stifle innovation – vast literature providing evidence to the contrary exists, instead.[25] Other studies show a positive relationship between stronger collective institutions and productivity,[26] economic efficiency, and levels of employment.[27]

29. Under this prism, we argue that stronger protection of labour rights (such as the right to collective bargaining and the right to take industrial action) is necessary to ensure that employees are consulted, and the managerial prerogative is limited with regards to the introduction of technology in the workplace so as to ensure that technological advancements are carried out with respect to human dignity.

30. With the fourth industrial revolution underway, we align ourselves with the line of argument which considers the qualitative change in the nature of work (i.e. the quality of the working conditions in the age of AI) to be of equal importance to the quantitative change (i.e. the amount of jobs lost, technological unemployment, etc.).[28] We believe that the promotion of rights and freedoms (such as the right to collective bargaining, the right to strike, the protection against collective dismissals), as well as other institutional forms that would restrict the managerial prerogative in the workplace and promote democratic decision-making, are essential to ameliorate the effects of this historical transition and ensure the protection of human dignity.

31. From this standpoint, it is not enough to repeal the Strikes (Minimum Service Levels) Act 2023 and the Trade Union Act 2016, which significantly restricted the exercise of industrial action. To enhance workplace democracy and the workers’ input in the introduction of new technologies in the workplace it is also essential to:

• establish a regulatory framework that promotes collective bargaining so as to reduce the democratic deficit in the workplace;
• establish a democratic framework for introduction of new technologies and AI in the workplace, by giving effect to the TUC’s call for a Future of Work Commission that would bring together trade unions, employers, and independent experts, to ensure that new technology is introduced with the consent of workers, with new technology agreements agreed by trade unions in workplaces across the country.
   

Creative Industries

32. The Creative Industries (CIs) are among the key sectors in the UK, as highlighted by the Government’s recently published Industrial Strategy, accounting for over 3 million filled jobs[29]. The Bill adopts a very traditional conceptualisation of the relationship between an employer and an employee, which is at odds with patterns of employment in the creative sector, where freelancing (incl. self-employment) and fixed-term project-based contracts are prevalent, work is often allocated informally, and ‘reputation economies’ operate[30]. There is therefore something of a contradiction between a government which foregrounds the importance of the CIs, and a labour Bill which does not even mention freelancers or the self-employed in any capacity.

33. Many in this sector are employed under conditions that make them vulnerable to exploitation, which we believe the Bill does not address sufficiently. For instance, workers who are contracted across brief periods of time, i.e. runners in the film industry, may not be entitled rights beyond zero-hour contracts, as they may not meet the requirement of being in consistent employment during a ‘defined period’ of 12 weeks. Since the care sector has been singled out in the Bill, we believe that there is a case for the creative sector to also be highlighted as distinctive and be allocated appropriate provisions.

34. The creative sector is typified by poor working conditions, with prevalent harassment and bullying[31] and misogyny[32], all linked to the poor levels of mental ill health of those working in the CIs[33][34][35]. We believe the Bill makes important provisions on family friendly rights and on protection from sexual harassment. Whether the latter are sufficient will be determined by the details of what is considered as ‘reasonable steps’ that employers must take. With entertainment media being at the centre of the #MeToo movement, there are two distinctive aspects to this industry that need to be taken into account to effectively address sexual harassment and bullying. One is the prevalence of work environments where ‘talent’ is experienced as so powerful that allegations are very difficult to bring or substantiate. The other is the large number of highly vulnerable workers who are reliant on key individuals for their future work and therefore do not feel empowered to raise complaints.

35. We would advocate for implementing in full the recommendations made in the ‘Misogyny in music’ report by the Women and Equalities Select Committee, to ensure harassment and discrimination are adequately addressed, and that protections extend to freelance workers.

36. The advent of AI technology is expected to have a significant impact on the creative industries, and therefore those who work in this sector. Artists and creatives from around the world have recently signed the ‘Statement on AI Training’[36] demonstrating the considerable anxieties from within the Creative Industries about how this will impact their jobs, livelihoods and working conditions.

Employment status and platform work

The proposal for a single-status of worker is much needed and it is disappointing that this has been shelved for now. In particular, this would significantly improve the precarity faced by gig economy workers who work for digital platform companies. The EU’s platform workers directive proposed employment, rather than self-employed, status for these workers and was welcomed by many trade unions, which argued that the employment status would represent a step towards confronting the “bogus self-employment” and precarity of millions of platform workers.

Several unions have demanded a presumption of employment in general to be implemented, and for the burden of proving an employment relationship to be reversed and fall on platforms rather than workers[37][38]. This means that “a platform will be considered an employer unless otherwise proven by the digital labour platform.” (ETUC 2022). Eurocadres states that the EU action “should be based on a presumption of an employment relationship complemented by a reversed burden of proof and the recognition of platforms as companies with all the obligations it entails”[39]. ETUC has also called for platforms to be recognised as companies and has consistently rejected the idea of platform work as a new kind of work and platform worker as a new kind of worker – arguing that there should be no separate status for digital platforms or creation of a third status between workers and self-employed.