Comment: Work laws need to be re-examined for the digital age

The lockdown has affected work and the workplace in ways that are plain to see. There are boarded-up shops, a largely idle hospitality sector, and vast numbers of people working from home, necessitating unprecedented levels of financial support by the State.

But although it sometimes feels as if the earth has stopped rotating on its axis, it hasn’t. Sooner or later the crisis will have passed. So it’s worth asking whether some or all of the changes we have seen this past year will endure. Questions have emerged, for example, about the viability of city centre offices and retail. There is a new focus on suburbs and on rural living. And there are moves to afford employees a statutory right to seek to work from home.

The country’s slowly improving digital infrastructure, including broadband, has been critical to our ability to weather the pandemic. It has facilitated innovation and ensured the survival of businesses that otherwise could have disappeared. In 2015 the launch of eircodes was greeted with scepticism and even some ridicule (full discIosure: I know, I was that soldier). But now that high streets and town centres are closed, on-line shopping has grown exponentially and eircodes have become indispensable.

When the economy and society re-open we can expect a continuing dividend from the enhanced efficiency and sophistication of business models honed during the lockdown.

Work and the workplace were already undergoing radical transformation well before the pandemic. Automation and digitalisation have had a marked impact on sectors like transport, logistics, banking and retail, as well as on manufacturing processes. In the public sector too there has been rapid digitalisation in the provision of many State benefits and services. Inevitably, all of these changes affect employment – whether in the nature of how particular jobs are carried out or in the very availability of employment in the affected sectors.

Disputes about employment status are not new but they have taken on a heightened significance in the gig economy. When workers are treated as self-employed they do not enjoy basic entitlements such as protection from unfair dismissal or discrimination. Business models based on apps allow their owners to maintain that they are simply matching service users with service providers, and that there is no employment relationship in existence at all.

Courts in many parts of the world, including Ireland, are grappling with this phenomenon. The recent judgment of the UK Supreme Court in the Uber case is significant. Although the legal position differs somewhat in this country, there is an obvious need for review of our employment laws. Ultimately legislative intervention will be necessary, though the complexity of the problem should not be underestimated.

In many sectors of the economy the workplace as a physical location is being supplanted by a set of tasks that can be completed anywhere. The pandemic has been a tipping point in this process. It has been a catalyst for “work anywhere” and “always on”, giving new emphasis to demands for a “right to disconnect”.

Big data and complex algorithms reach deep into the workplace through monitoring technologies and data-driven decision-making tools. Aislinn Kelly-Lyth, a researcher on algorithmic management at the University of Oxford, has observed that almost every stage of the employment relationship can now be automated or augmented using sophisticated technologies: “Automated software scores candidates’ video interviews. People analytics tools rate workers on their productivity. And tracking technologies ‘nudge’ employees to improve their performance.”

There has been much praise for front-line workers during the pandemic. Many of these same workers – whether in retail, banking or food delivery – are also on the front-line of the rapid transformation wrought by digitalisation. It is essential that such workers have decent conditions of work and basic legal entitlements.

Algorithms and big data are transforming how we live as citizens and as consumers, often in ways that enhance the quality of our lives, including our health. But if they are also to define and shape work and the workplace, and compromise basic entitlements, this cannot be allowed to happen by default.

Clear-headed analysis and planning by government, the Oireachtas, and all of society is required, as well as a willingness where necessary to replace laws that were fashioned for a different era.

Alex White SC is chair of the Employment Bar Association who will host a free on-line seminar on 18 March - ‘Employment and the workplace after Covid’ - details at employmentbar.ie