Employment Law Newsletter June 2024

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ICO publishes Regulating AI: The ICO’s strategic approach

In response to the Department for Science, Innovation and Technology’s (DSIT) request for an update outlining its strategic approach to AI, the Information Commissioner’s Office (ICO) published Regulating AI: The ICO’s Strategic Approach on 1 May 2024. The Strategy details how the ICO is driving forward the principles contained in the 2023 AI regulation white paper and the Government’s 2024 guidance on implementing those principles.

When it comes to AI, the ICO is committed to:

• Taking a de facto leadership role in AI regulation – the UK is taking a different approach from the EU in that it has made no moves to set up an independent regulator to oversee AI. Instead, the language of the AI Regulation White Paper aligns with established data protection principles such as transparency, fairness, and accountability. Given that data protection and privacy laws apply to all stages of AI development and distribution, it makes sense that, for the moment, the ICO steps in as the de facto regulator. However, we have little doubt that as AI technology grows and tensions between innovators, the Government, and the general public increase, a separate AI regulator will be necessary.
• Focusing on risk – the Better Regulation Framework and Smarter Regulation: Delivering a Regulatory Environment for Innovation, Investment and Growth both focus on the UK Government’s commitment to balancing the need for regulation to be necessary and proportionate to support economic growth. To this end, the Strategy suggests that the ICO will let organisations develop AI provided they conduct Data Privacy Impact Assessments and implement appropriate safeguards where required. However, the Strategy also makes clear that enforcement action will be taken where compliance is breached.
• Working to understand AI – consultations, information requests, and invitations to sandbox projects will be a regular feature of the ICO’s work over the coming months and years as it focuses on understanding how AI is being used and its impact on data protection. Collaboration with other regulators is also identified in the Strategy as a crucial element of the ICO’s plans, whether via direct bilateral contact or groups such as the Regulators and AI Working Group. The Strategy points out that the ICO was a founding member of the Digital Regulation Cooperation Forum (DRCF), which also includes the Competition and Markets Authority, Ofcom, and the Financial Conduct Authority. AI will be a priority for the DRCF, and it has already published a paper on the benefits and harms of AI.

Workwell pilots announced

On 7 May 2024, the Department for Work and Pensions and Department of Health and Social Care announced the launch of “WorkWell” pilots which will begin in October 2024 in 15 areas in England.

The pilot service will provide a single assessment and gateway to local employment support and health services. It aims to help people manage their health condition or disability and identify workplace adjustments to help them stay in work or return sooner.

The service will be voluntary and open to anyone with a health condition or disability. People will be able to self-refer to WorkWell, or they can be referred by their employer, GP or the community sector. Once referred, a Work and Health Coach will support them, who will assess and develop a plan to help them overcome health and social barriers to work. They will be connected with local support services, including physiotherapy, employment advice, and counselling, and they will be referred to other relevant local services, such as support groups and the Citizens Advice Bureau.

The pilot will inform the potential future rollout of a national WorkWell service.

Groom v Maritime & Coastguard Agency [2024] EAT 71 – EAT held that a volunteer was a worker when attending activities for which they were entitled to remuneration.

The Claimant was a volunteer in the Coastal Rescue Service (CRS). He brought a claim because he was not permitted to be accompanied by a trade union representative at a disciplinary hearing. He argued that he was a worker under section 230(3)(b) of the Employment Rights Act 1996.

The CRS volunteer handbook stated that appointments were voluntary. It also set out what was expected of volunteers, including attending training and “maintaining a reasonable level of incident attendance”. For certain activities, volunteers could claim “minor costs caused by your volunteering, and to compensate for any disruption to your personal life and employment and for unsocial hours call outs.” Many volunteers did not claim any costs.

The Employment Tribunal held that the Claimant was not an employee as there was no employment contract or automatic right to remuneration.

The Employment Appeals Tribunal allowed the Claimant’s appeal. It concluded there is no definition of “volunteer” and that volunteer status will differ depending on the particular arrangement between the parties. The EAT held that the fact that expenses were not paid automatically and some volunteers did not claim them was irrelevant. A contract came into existence when a volunteer attended a relevant activity for which they had a right to remuneration. In addition, a volunteer’s attendance was governed by a Code of Conduct, which set minimum attendance levels at training and rescue incidents. These gave rise to a contract for providing services rather than simply an agreement to reimburse expenses.

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This newsletter does not provide a full statement of the law and readers are advise to take legal advice before taking any action based on the information contained herein.