WorkLife 2.0: trends to look out for in group workforce claims in 2021

In our recent blog post, we predicted that, for a variety of reasons, the year ahead would likely see an increase in group workforce claims. The types of claims that employees and workers may bring on a group basis have recently received a lot of press attention, and in this blog post we examine some of the current topics and themes grabbing the headlines that may prove fertile territory for such group workforce claims in the months to come.

Workers' rights post-Brexit 

The (now dropped) review and consultation on workers’ rights post-Brexit has drawn attention to workers’ rights with a foundation in EU law, such as limits on working time and the right to holiday pay as part of overtime calculations. Changes and potential enhancements to workers' rights may be seen later this year in the ‘Employment Bill’, which may also introduce a new single labour market enforcement agency to enforce employment rights. 

Watch this space for the impact any such agency may have in relation to group workforce claims. For further detail on this, please see our blog post: UK labour enforcement in the post-COVID era.

The ‘return to work’ post-pandemic

The impact of COVID-19 on the employment landscape has been seismic, with the pandemic generating a multitude of potential group workforce claims. 

Two particular areas of interest in the context of the ‘return to work’ stand out.

1. Companies taking a ‘no jab, no job’ approach when it comes to their employees being vaccinated. Such employers may face group claims, especially if these policies result in employees being denied the opportunity to work or even dismissed. This could include claims for detriment, unfair dismissal and/or discrimination. Given the press attention these policies have already attracted, any litigation will undoubtedly be just as high profile.
2. The increase in employer monitoring and surveillance in the workplace post-pandemic, including, for example: 
   • IT-based monitoring software for those working from home or back in the office (eg software that logs keystrokes, tracks mouse movements, and takes screenshots); and
   • physical movement surveillance (whether through wearable technology or CCTV) to ensure adequate social distancing in the workplace. 

This is a relatively untested area of law, and the legal risks present from a data protection perspective should not be ignored, especially given the growing trend of group data privacy actions in other contexts (as noted below).

The economic impact of COVID-19 and job losses 

In addition to the general increase in litigation during a recession, well publicised large-scale layoffs and redundancies could also be an area for group workforce claims, for example:

• In a mass redundancy context, employers failing to comply with their statutory information and consultation obligations could face substantial fines and penalties; and
• The use of ‘fire and rehire’ processes to place employees on disadvantageous terms and conditions have also come under scrutiny, with ACAS currently undertaking an independent investigation into employer practices in this area.

Employee data claims

Recent years have seen data protection regulators – particularly in the UK and Europe – starting to show their willingness to impose large fines for breaches of data privacy legislation. In Germany, H&M was issued with a €35.3m fine, at the time the second largest fine ever to be handed to a single company for breach of the GDPR, for unlawfully monitoring its employees. 

Given the mass of employee and workforce data now collected and processed by many businesses seeking to gain a competitive advantage through analytics, it would not be a surprise to see further workforce-related data claims in the near future.

Equal pay claims

Although traditionally more associated with the public sector, large equal pay claims against private sector employers are becoming more common and have been a feature of the employment law landscape in recent years. The hotly anticipated ASDA decision on comparability for equal pay brought by shop-floor workers is due from the UK Supreme Court this year and may well result in an increase in such claims in the future. 

With pay structures in the retail/warehouse context particularly vulnerable, and potential damages reaching into the billions, this is certainly a topic to keep an eye on.