The Future of Work and the UN Guiding Principles

 

We have seen a significant focus recently on the rapidly changing nature of work. As business models and consumption patterns change, what are the rights of agency workers, the self-employed, and those working in the ‘gig economy’? The UN Guiding Principles on Business and Human Rights provide the authoritative point of reference for companies when it comes to worker rights. They expect all companies wherever they operate to respect the principles concerning fundamental rights in the eight ILO core conventions, as set out in the Declaration on Fundamental Principles and Rights at Work. In the UK, policy-makers are listening to the needs of workplace concerns, and have introduced the Modern Slavery Act 2015 to stamp out abject ‘slavery’ conditions in UK companies and their supply chains. The 2017 Taylor review of Modern Working Practices also highlights needs for reform. What is the role of modern employment or labour law? How do we secure an acceptable social contract between labour and enterprise?

 

The following captures key highlights from a discussion held on this topic at UCL Laws on November 9, 2017.

 

Anna Triponel, Honorary Associate at UCL’s Centre for Ethics and Law, introduced the discussion by highlighting noteworthy statistics. For instance, 65% of children entering primary school will work in roles that don’t currently exist, the office as we know it will be a thing of the past, 10 million UK workers are at high risk of being replaced by robots, and 95% of purchases will be facilitated by e-commerce in the UK in 2040. Some experts say that the extent and rapidity of the changes to our labour markets will be comparable to a second industrial revolution. So, the question inevitably becomes: What is the human cost of these rapid changes we are seeing in our workplaces? How can one place the worker at the centre of this evolving business ecosystem? Can the UN Guiding Principles help? Can labour reform help? We bring together a panel representing industry, practice and academia to explore these questions.

 

Hugo Martin, Director of Legal and Public Affairs at Hermes Parcelnet, explored the key lessons learned from the adoption of the company’s Code of Conduct in September 2016. Following publication of Frank Field’s report, Wild West Workplaces, as well as media scrutiny of the business, Hermes has placed emphasis on embedding its new Code of Conduct. Key provisions include paying workers fairly and above National Minimum Wage, treating people with respect and dignity and giving people a voice. This has included structuring focus groups for couriers, exploring options for courier representation and creating a process to provide remedy to aggrieved couriers, including through the creation of a complaints panel and the appointment of a business and human rights ombudsperson. Lessons learned include the importance of measures conveying clearly to all parts of the business that respect and dignity form the foundation of the business and should always come first, and the grievance mechanism created by the business for service providers has been particularly important in this regard.

 

Tom Player, Partner in the Human Resources Practice Group at Eversheds Sutherland, described the current state of the land when it comes to UN Guiding Principles’ implementation by companies. The soft law contained in the Guiding Principles is crystallizing into innovative hard law such as the Modern Slavery Act. This is about more than a statement: this is about changing the company culture to ensure that there is Board awareness of the value in committing time and resources to managing one’s human rights risks. Recent legislation is ensuring that a whole range of companies are now paying attention to the Guiding Principles. However, a number of challenges remain. These include the vast number of workers contained in companies’ supply chains and the challenges with mapping and identifying labour rights issues. There are resource constraints to supplier vetting and worker interviews, and logistical challenges in broader stakeholder engagement. There is likely to be increasing pressure on companies over time to improve their performance in this area and the legal landscape may well evolve over time to consider some form of joint responsibility for human rights violations that emerge within an organisation’s direct supply chain.

 

Clare Richards, Good Work Programme Lead at ShareAction, underscored the importance of investor engagement on this issue, including through savers raising it as a concern with their pension funds. For instance, where a company does not seek to pay a real living wage, it demonstrates that it does not value its employees as a key asset. Pay is one barometer for a company to seek to secure the social license to operate. In a wider sense, reporting by companies on their human rights risks is patchy: investors want to know more about the labour risks that are present within the companies they invest in. This includes visibility of risks beyond the company’s direct operations. The Workforce Disclosure Initiative, a recently launched initiative formed of more than ninety investors with $8.6 trillion AUM who are calling for greater transparency from companies, is aiming to assist in this field. The responses from the companies – both what they say and what they do not say – will in turn assist investors in having a sense of how well the companies know and address their labour rights risks, and what they are doing to stay ahead of their competitors when it comes to managing their workforce.

 

Professor Alan Neal, Employment Judge and Professor at the University of Warwick, highlighted the remaining challenges in this space. For instance, although the UK was one of the first countries to develop a National Action Plan on Business and Human Rights, it is unclear who owns this plan and what results it has yielded in practice. The recent report by the UK Joint Committee on Human Rights makes this clear. When it comes to the Taylor Review, it is lacklustre in responding to current worker needs. Turning to companies, corporate social responsibility is no longer seen as a corporate fig leaf. CSR now embodies serious and well-intentioned attempts to respect worker rights, however it is debatable whether these attempts deliver the results required. At the end of the day, there are clear limitations to labour law, that criminal law can seek to rectify.

 

Nicola Contouris, Professor at UCL Laws and founding member of UCL’s Labour Rights Institute, concluded the session by highlighting the gulf between labour markets, income inequality and unfair allocation of risks. These are now becoming societal risks, and are no longer isolated labour risks. The political landscape has changed since the commissioning of the Taylor Review, which will likely lead to different results than those initially anticipated. At the same time, the expectations to address these issues has risen. This debate demonstrates the nuances to keep in mind, and the importance of soft law instruments such as the UN Guiding Principles, in moving this forward.

 

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