Over the past year, labour and employment lawyers have seen a great deal of activity, with those we spoke to putting this down to several issues. The #Metoo movement has caused a sea change in organisations around the world resulting in the generation of a great deal of work for labour and employment specialists. Employees are now far more aware of their rights to challenge inappropriate behaviour in the workplace, and seem more willing to bring legal action against those who have harassed them. Furthermore, in the first year following the introduction of the GDPR, practitioners have seen exponential growth in the public’s understanding of privacy rights and data protection obligations, and a corresponding rise in data protection work for both corporates and individuals, as well as a predictable explosion in compliance projects. Other factors accounting for increased work include the law surrounding whistleblowing, which continues to be a patchwork affair globally, with some jurisdictions like Europe advancing whistle-blower protection through legislation, while others lag behind in their such safeguards. Finally, the legal questions surrounding the status of “gig-economy” employees remains a key trend, with some of the world’s largest economies bringing legislation to combat worker exploitation.
The #Metoo movement continues to make its presence felt in labour and employment practice around the world in the form of sexual harassment and discrimination proceedings. Practitioners in Europe, North America, South America and Asia reported high levels of litigation and investigations into workplace harassment, with one imparting that “the explosion of MeToo has completely taken over my day-to-day existence: I have been working non-stop on these cases for the last year”. Lawyers acknowledge that the movement has “quite rightly empowered people and given them confidence to raise issues in the workplace”, which has translated into unprecedented level of litigation and investigations across many jurisdictions. As a corollary of this uptick in harassment proceedings, practitioners note that there is “more and more of a compliance focus” from employers around the world. They are now “an awful lot more sensitive about these issues” and try to ensure a robust response to any that arise. It is acknowledged that, for global companies rolling out compliance programmes, there is “a challenge of adapting these to the local context”. One source goes as far to say that the “primary impact of MeToo has been on training and in companies implementing new and good policies”. This is not to say that MeToo is a universal movement as of yet. Practitioners told us that in Hong Kong and China it has not yet “really kicked off in the same way” as in the West.
In May 2019, the GDPR legislation in Europe turned a year old. It has been prodigious in its infancy, with 28 EU member states reporting over 280,000 GDPR cases for investigation, with a 40 per cent increase in cases between February and May 2019, according to official figures. The majority of these cases are reportedly complaints regarding organisational data protection procedures and data processing activities. With such numbers, labour and employment lawyers in the EU are reporting that GDPR work is now “one of the hottest trends” and is having “a great impact on labour and employment law”, especially as European regulators begin to pursue GDPR breaches more vigorously. One interviewee imparts that there is “a gigantic amount of GDPR work”. Growing alongside the number of GDPR breach investigations is compliance work for labour and employment lawyers. As one practitioner put it, “Compliance is taking a lot more focus among firms and is a growth area.” Such is the rise in compliance related matters that “smaller firms are struggling a bit as they do not have a GDPR speciality” or the capacity to meet demand in the market. Some specialists have also noticed that GDPR is having an impact in dismissal cases, and “has a large part to play in investigations”. A side-effect of GDPR legislation seems to be an increased awareness of online privacy among consumers. The EU Commission found in May 2019 that 67 per cent of European citizens have heard of GDPR, and that 57 per cent know that their member state is responsible for protecting their data and rights to privacy.
With a seeming proliferation of high-profile whistleblowing cases globally, it is hardly a surprise that whistleblowing legislation is another prominent trend in jurisdictions around the world. In Europe, legislation regarding whistleblowing is moving quickly: as of April of 2019, the EU parliament voted to adopt the Whistleblowing Directive, which is designed to protect whistle-blowers from retaliation by establishing safe channels of reporting within businesses with more than five employees. Sources told us that this has inevitably translated into “an uptick in whistleblowing in the employment law space” in the last year across Europe, with further work anticipated in the future as more people take advantage of these protections. Elsewhere, the US and Canada established schemes that reward whistle-blowers in the private sector. Meanwhile, in the UK, district court judge Claire Gilham has brought her case for judges to be classed as workers, and therefore protected by whistle-blowing legislation, to the Supreme Court. The case has significant implications for whistle-blowers in the public sector and will be watched closely by practitioners. However, legislation regarding whistle-blowing is moving at different paces, and not all jurisdictions have such strong protections in place. For instance, the recent raid by authorities in Australia on the Australian Broadcasting Corporation following the leak of information regarding allegations of misconduct by the Australian military in Afghanistan not only raised questions around freedom of the press, but also questions of whistle-blower protection. The BBC, in a report on June 6, quoted employment lawyer Josh Bornstein of Maurice Blackburn, who stated that “when it comes to whistle-blower protection Australia is a backwater.”
In jurisdictions around the world, the “gig economy” phenomenon has maintained its prominence as a method of structuring workforces, as well as a topic of discussion in the media. Many employers continue to seek to reduce the expense and associated demands of a more regular workforce on their businesses. In the US, for example, behemoths such as Uber are starting to come under increasing scrutiny for their use of temporary contracts. Furthermore, companies with the size and sophistication of Google are also taking advantage of this new employment model, with more than half of its employees on temporary contracts, according to the New York Times: a not uncommon workforce trend at present in Silicon Valley. However, some practitioners told us that the “gig economy” is a phenomenon that “gets a lot of press but actually doesn’t result in a lot of work, as big and sophisticated clients do not use zero-hour contracts that often”. Indeed, some indicated that the age of the gig economy may be coming to an end, with governments and legislatures increasingly cracking down such arrangements. The California assembly, for example, passed in 2019 a bill forcing employees to recognise temporary workers as full employees. If the bill passes the California senate, it could mark a sea change in employment strategies going forward.
Labour and employment legal practice can never be accused of stagnating, with practitioners around the world having to rapidly adapt to an area of law that continues to develop new mutations seemingly every year. The influence of the #Metoo movement on the workplace, as well as the work of legal professionals around the globe, cannot be underestimated and will continue to generate new work. Meanwhile, in Europe, GDPR’s first year in effect has translated into an exponential increase in work for labour and employment specialists in terms of compliance advice and privacy breach investigations. Changes are also afoot regarding whistleblowing legislation and attitudes towards the gig economy. With the terms of Brexit still uncertain, signs of economic downturn in some of the world’s largest economies, and increasing pressure for legislators for corporations to change their employment structures, it is evident that labour and employment practitioners cannot sit still in this protean practice area.