Lucy advises on a full range of employment issues with a focus on legal and strategic advice on redundancies/restructuring; sensitive terminations and discrimination.  Lucy leads Lewis Silkin’s Future of Work initiative, the Future of Work Hub an award-winning future of work blog.  The Future of Work Hub is a community insight sharing and resource site that helps businesses navigate an uncertain and rapidly changing landscape and prepare for the future of work.

PODCAST TRANSCRIPT

[00:00:07] - Doug Foulkes
Hello and welcome to Episode 48 of the Future of Work. This is the podcast that looks at every aspect of work in the future. It's brought to you by WNDYR. This is the second part of our conversation with Lucy Lewis. If you remember, along with Claire Haidar; the CEO of WYNDR, we are deep in conversation with employment lawyer, Lucy Lewis. In Part 1, we discussed the key trends from a legal perspective. Claire, what's today's question about?

[00:00:36] - Claire Haidar
Doug, really excited about this particular part. This is a three-part conversation. This really goes to the heart of the issue for me. We invited Lucy onto the podcast specifically to talk about trends that are happening in employment law, but more importantly, some of the real significant changes, not just trends, but actual changes that are happening at the legislative level. That's what this episode is about; it's about concepts like the right to work and how those are shifting and changing, and the impact that that has on employers specifically.

[00:01:14] - Doug Foulkes
Brilliant. Let's get stuck in.

[00:01:16] - Claire Haidar
Let's talk specifically about employment law now, because this is the area where your expertise really shines. What are some of the biggest evolutions that need to happen in employment law for companies to really be able to thrive in this new world of work that we find ourselves in? Do the evolutions in employment law need to come back to these central themes that you've just spoken about, or the more, what I would term, traditional areas of employment law that actually need to be changed?

[00:01:47] - Lucy Lewis
It's a good question, and I think it's a combination of both. I think that the key areas, if you like; traditional areas, that need to be changed, focus on changes that started pre-pandemic that have been accelerated as a result of the pandemic. I think there are two key ones there: the first is that employment law pretty much globally hasn't caught up with the gig economy, so gig workers; people that work for Uber, Deliveroo, Uber Eats, those platform-based workers.

[00:02:23] - Lucy Lewis
Across the world, there's a question about what's the status of those people? They're not traditional employees working in a 09:00-05:00 job in an organization that they buy into where they get benefits. What are the protections that those people should have in many countries? The UK isn't alone in this. Some of them don't have the most minimum protections against dismissal, sick pay, in some cases, minimum wage rights. The traditional infrastructure of employment law hasn't really caught up with that. We learnt this week that there are double the number of gig economy workers than they were before the pandemic, it's a huge shift.

[00:03:03] - Lucy Lewis
That's the first thing. A related thing, and this is particularly pandemic impact, it is the question about where people work. We've all been able to sit at home and do our jobs, and then you realize, "Well, actually, if I'm sat at home, why don't I go and just sit in the South of France? Or why don't I go and sit in Florida? Or I could do this in the Bahamas and that be wonderful." The infrastructure around employment cannot cope with that pressure.

[00:03:31] - Lucy Lewis
That's because although we have become more global actually, employment law has pretty much always been local, tax law has pretty much always been local, and so you find that the businesses, lots and lots of them, that we speak to; and this is one of the things the questions that we get most commonly, are saying, "We're totally fine if Claire wants to go and do this job in the Bahamas. In fact, that would be wonderful. She'd probably be much more efficient and she'd be much happier, and that would be great." We're saying, "Yeah, that would be great, but actually she'd have the benefit of Bahamas employment law.

[00:04:05] - Lucy Lewis
Do you know what that is? What are you going to do about tax? Are you going to be taxing her where she is or are you going to be taxing her in the Bahamas?" It's a is a global problem.

[00:04:14] - Lucy Lewis
We see a little bit of change around digital nomad visas. Some of these countries have said, "Well, look, we can make all those problems go away. Our internal infrastructure, will make all those problems go away, if you are high enough." That's for example. But I think looking ahead at the evolution, we need to see over the next probably 5-10 years, those are the two really critical things.

[00:04:40] - Claire Haidar
Can we pause a little bit there and go a little bit deeper there. You've named two very sticky issues, and interestingly enough, when I was in the process, I built our company in Ireland. It was headquartered in Ireland and it just organically grew into the US. I became one of these like falling through the cracks children who I didn't have a tax home. I didn't have an actual employment home from our company perspective, because I was in so many different vacations, growing the business, just following the way the business was growing, and so I can relate to this at a personal level.

[00:05:14] - Claire Haidar
But as you say, we can see our customers struggling with these issues. Talk to us more specifically about... You've mentioned the digital nomad visas, what are some of the other things that are emerging both at a company level but also at a legislative level, at a country level that are very clear changes in direction and that move away from a purely local lens?

[00:05:40] - Lucy Lewis
If we deal with the company level first, because perhaps unsurprisingly, that's where we see most change, and I think the thing that we're seeing, and this does go back to the theme about talent war; the great resignation, there is a war, there are businesses prepared to take more of a risk within certain parameters. Allowing people, for example, to not necessarily go and live in another country long term, but to have an extended break. Saying, "For two or three weeks, you can go to wherever you like and do your role from there." We will give greater flexibility to travel outside the country of choice.

[00:06:21] - Lucy Lewis
That legally involves risk. The risk doesn't change really if you go for three weeks or you go to three months, but there's acceptance across businesses, we're going to just push the boundaries of what's possible because this is something that employees want.

[00:06:37] - Lucy Lewis
That the legislative change is much slower and there's a challenge for countries because what was able to happen through the pandemic was a turning a blind eye. There was a unwritten acceptance that people ended up stuck places. You may have gone home to Spain to see your family and then the travel restrictions meant you couldn't come back, and so there was you. Well, we can make this problem go away in the short term by just saying we're not going to come after businesses for tax, for example, because the circumstances were so exceptional; that person that's normally based in London couldn't travel from Madrid.

[00:07:15] - Lucy Lewis
Now they are being forced to look at this question. I don't think they've decided what the answers are. I think it will require probably a global response, and we know that a global approach of taxation generally is slow. If you ask me what I'd like to see, I'd like to see the future of work being that there is much greater acceptance of digital nomad visas; visas that do allow people to travel much more flexibly, that allow them to do that in a way that doesn't create tax complications for businesses, doesn't create employment rights complications for businesses, but I think those things are difficult to achieve. I don't think it's something that's going to happen quickly.

[00:07:58] - Lucy Lewis
I think the struggle for businesses where they want to say, "Yes, Claire, go to the Bahamas." I think that immediate struggle, there's actually some legal challenges in that. I don't think they're going to disappear overnight, so it becomes a risk analysis.

[00:08:13] - Doug Foulkes
Lucy, we spoke a little bit earlier about employee mobility. Also, there's the right to work. I mean, these are things that have come under scrutiny for the last two years. What would you say are the further evolutions that need to happen for that to become more widespread?

[00:08:29] - Lucy Lewis
The three key issues that we have to fix. The right to work as you say. Actually, the right to work is often the biggest challenges to businesses because most countries have a Day 1 right to work issue. I'll have to look at how they adjust that. The the safe grounds, I think, is that these countries would allow people to work from that for a relatively short period of time. I don't think we'll get to a place where the right to work or the migration issue disappears completely.

[00:09:01] - Lucy Lewis
I mean, there are many of us philosophically that would like to see total freedom of movement. I think freedom of movement has become such a political issue that we won't get there.

[00:09:08] - Lucy Lewis
I think the most likely evolution is that you don't have a Day 1 right to work challenge, that you could go to France or to Spain or to the Bahamas for, say, four weeks without there being a right to work issue. The tax challenge needs to be addressed. That's potentially easier for employees that are essentially not really having any presence. They're not doing any work in that country, they're not delivering any value in terms of signing contracts with Spanish companies in Spain or French companies in France, but they're just doing the role the tax changes may be able to be addressed there.

[00:09:45] - Lucy Lewis
One of the bigger challenges is the employment rights question; that the general principle is that you benefit from the employment protections in the country where you are working. There is, again, a philosophical question about whether it's right that if you choose to go to France, Claire, or work from there, and that's your active decision, whether you should be able to opt out of the employment rights that you would normally have just by virtue of being in France, for example. The evolution that we'd need to see is some safe packaging of opting out of those rights, perhaps again, for a short period of time, perhaps again reflecting the nature of your work.

[00:10:30] - Lucy Lewis
But lots of countries feel rightly, very strongly, their employee protection is important, and they're uncomfortable about being seen as spaces where people can work without being properly protected. Those are the key areas of evolution. None of them unfortunately has an easy answer.

[00:10:48] - Claire Haidar
Yeah, they're very complex issues. I think that last one, because these are almost the three pinnacle issues, if you could call it that, because the definition of these three at a global level is going to define everything else that comes after it. For me, one of the differentiations that's important to make is what becomes the employee's responsibility and what becomes the business's responsibility, because right now that's also an area that's very undefined. It's defined according to old principles, but it's not defined in this new era.

[00:11:22] - Doug Foulkes
That is where we draw the line today. If you missed the first part of our conversation about the evolution of employment law, check it out on Spotify, Google or Apple Podcasts, or, of course, on the WNDYR website; that's wndyr.com. We'll conclude our chat with Lucy shortly. From Claire and myself, we'll see you soon.