47. The key trends affecting the evolution of employment law in the future of work | Lucy Lewis, Employment Lawyer and Partner at Lewis Silkin


Lucy Lewis | Employment Lawyer and Partner at Lewis Silkin


Today we caught up with Employment Lawyer and partner at Lewis Silkin, Lucy Lewis. She advises on a full range of employment issues with a focus on legal and strategic advice on redundancies/restructuring; sensitive terminations and discrimination.

The main takeaways from our conversation today were:

- What are the key trends affecting employment law today?

- What changes have we seen in employment law in the past 24 months?

- What are the practical applications business leaders can take away and implement?



Lucy Lewis


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.




[00:00:00] - Lucy Lewis
And I think what we're seeing now, as a challenge to businesses, is actually a realisation that a broader set of skills are required. We're seeing a much greater focus on things like resilience, adaptability. Skills that aren't so task and role delivery-based, but more environmental-based. The people that we need within our business need to have developed a set of skills outside just their ability to deliver their job.

[00:00:31] - Doug Foulkes
Hello and welcome to Episode 47 of The Future of Work, the podcast that looks at every aspect of work in the future. And, as always, it's brought to you by WNDYR. We release two podcasts a month featuring industry experts and thought leaders, discussing how work is changing and evolving. I'm Doug Foulkes and, as always, I'm with WNDYR CEO, Claire Haidar. Claire, how are you this week?

[00:00:57] - Claire Haidar
Doug, so good to be back here with you again. Honestly, I'm a bit tired today. I flew for seven hours yesterday, so I'm tired, but in a good way.

[00:01:10] - Doug Foulkes
Did that make your arms ache? Oh, flew.

[00:01:14] - Claire Haidar
Yeah, well, I flew. But yes, it does make your arms ache because when you're a student pilot, you don't yet know how to control that stick properly. And so you end up exerting way more force than you should because you're not trimming correctly yet.

[00:01:27] - Doug Foulkes
And you must concentrate so much?

[00:01:29] - Claire Haidar
That's the piece that tires you so much because I don't yet have that pilot stamina.

[00:01:35] - Doug Foulkes
Claire, we need to get on. This week we caught up with employment lawyer and partner at Lewis Silkin, Lucy Lewis. We had a great conversation and we both learnt a lot. Why did you invite her onto the podcast?

[00:01:50] - Claire Haidar
Doug, I have to reiterate and say that Lucy's conversation was definitely right up there with some of the favourites that you and I have had. She's sharp. She's really sharp. She is an employment lawyer. They run a global HR consulting firm and employment law firm. There's just such a big shift happening in employment law right now. I felt we have to bring somebody with this area of expertise in. We need to have somebody be able to talk us through specifically the legislative changes that are happening.

[00:02:25] - Claire Haidar
And I think that's the most exciting piece of this conversation. We had our three different segments in the conversation with her. We were looking at the trends that she and her partners are seeing across the customer base right now. What are the recurring issues that they seeing from an employment law perspective? And then we segue the conversation from there into the practical applications of how companies are going to have to restructure the way they think about benefits and think about how they employ people, where they employ people.

[00:03:00] - Claire Haidar
And I think, for me, one of the core parts of this conversation that people will really be able to walk away with is the concept of the right to work, and how that is shifting and changing, and what that means for employers today.

[00:03:15] - Doug Foulkes
Should we get stuck into the podcast?

[00:03:18] - Claire Haidar
Yes, definitely. Lucy, hi. It is so good to have you here with us.

[00:03:24] - Lucy Lewis
Thank you, it's really great to be here. It's such an interesting time, isn't it? And lots to talk about.

[00:03:28] - Claire Haidar
If there is any group of people who have really been working extremely hard over the last 24 months, it's employment lawyers. So starting us right off, Lucy, you run your own podcast as well and you've brought some really interesting business leaders into that. And then naturally, there's all of the clients that you guys service in your own law firm.

[00:03:50] - Claire Haidar
Can you share with us what some of the most reoccurring trends are that you've seen business leaders having to make in terms of decisions over the last 24 months?

[00:04:02] - Lucy Lewis
Yeah, it's a great question because it's been such a fascinating time, hasn't it? We've sort of seen an arc, an evolution of strategic planning and business organisation over the last 24 months. It started with crisis management, and for most business leaders, they'd never been in a time of real crisis management. And we then saw, if you like, an almost business as normal. Let's just deal with the here and now. Let's not think about the strategic planning for the future.

[00:04:31] - Lucy Lewis
And now we find ourselves in this really interesting moment, I think, where business leaders are starting to think, okay, well, now we need to look and plan for the future. And, for me, what's really fascinating about that is I, like you, have been talking about the future of work for quite a long time. Pre-pandemic, lots of years pre-pandemic. And we find ourselves in the moment that from a strategic perspective, the future of work is here and now. And the decisions businesses make here and now are really going to impact the future.

[00:05:03] - Lucy Lewis
I talk quite a lot about business leaders having this once-in-a-generation opportunity to really reshape how they work. And so when we look at themes and trends, I actually think the most interesting time is probably the last 3-6 months, the time where we've come out of that crisis response.

[00:05:22] - Lucy Lewis
And one of the most interesting themes that I see is this idea that businesses now are really determined that they've got to have this higher purpose or higher value. That they've got to reshape their strategic business plans to be more purposeful. That's one of the things I think that's come out of the pandemic.

[00:05:41] - Lucy Lewis
And from a themes perspective, we see that in a number of ways. It's a good time to be talking about the climate crisis and sustainability with COP26. There's an expectation that business leaders are going to be active in that, that their strategic business planning will have a sustainability purpose.

[00:06:01] - Lucy Lewis
We see it from a diversity and inclusion perspective. Businesses are expected to have a view on diversity and inclusion. They're expected to take a stance. They're expected to act responsibly. This idea of strategic business decisions coming from this higher purpose, essentially of being a responsible business.

[00:06:19] - Lucy Lewis
And the other theme I think we've seen through the pandemic, and actually this is if you go further back over the last 24 months but I think it's something we'll see moving forward, is a real focus on wellbeing. What does wellbeing look like? What are our responsibilities as businesses to ensure the wellbeing of our employees? And we're seeing a much greater focus on that. A strategic focus, if you like, rather than just a reactive focus.

[00:06:44] - Claire Haidar
You summarised it perfectly in terms of these three phases that companies have essentially gone through. And I'm so happy to hear that the strategic focus has emerged most strongly from that last phase which is the reinvention, relooking at ourselves. And, as you say, it's a once-in-a-lifetime opportunity and to hear that that is actually where the majority of the major themes are emerging, is music to my ears. Very happy to hear that.

[00:07:11] - Lucy Lewis
It's this moment in time that businesses have to say the decisions that we make now... and there's lots of things that we can talk about, we'll come on I'm sure to talk about how employees work, where they work from, the hours that they work. There's a moment to reinvent that. And we won't get that opportunity again. I think the really successful businesses are going to be the ones that are brave in those decisions.

[00:07:36] - Doug Foulkes
Lucy, I'm going to jump in and say, hello, good evening for me and you, I think. Good morning for you, Claire.

[00:07:41] - Lucy Lewis

[00:07:42] - Doug Foulkes
I have my own small business, so I wouldn't call myself a business leader in the same sense that you're talking about. So my questions are maybe going to focus on a slightly different area. Apart from the trends, what would you say are the main two or three issues, or recurring issues, that have cropped up over the last 24 months or even the last six months, as you were talking about earlier?

[00:08:05] - Lucy Lewis
Again, great question. And actually, you saying you're a small business, it reflects one of the trends. We talk, particularly in the US, about the great resignation. But more broadly, there is a war on talent. There's a view that people are reconsidering what they want their future to be. And a number of those people are saying, actually, we'll step out of the corporate environment. We'll do our own thing. We'll set up our own business.

[00:08:28] - Lucy Lewis
So that disruption, whether we call it the great resignation, whether we talk about it, is people being empowered to have more control over their careers and their work-life balance. But what we're seeing is it's creating war on talent, and that actually creates a really interesting dynamic. It's driving quite a lot of those bigger, strategic themes where I talk about businesses needing to act with purpose. In part, that's driven by the war on talent, so that's probably the first thing.

[00:08:57] - Lucy Lewis
The other thing that we've seen, I think this has been really interesting and this has kept employment lawyers busy, is how you manage health data. More recently that's focussed on how you manage vaccination and how you manage testing data.

[00:09:11] - Lucy Lewis
But we've always, to a greater extent, pretty much on a global level, and some countries had a more permissive approach than others. But we've always stood back a bit from health data and now employers find themselves in a position that actually they're having to look at things like, should we be mandating vaccination? Should we be requiring testing?

[00:09:32] - Lucy Lewis
And that's quite an uncomfortable area for most employers. It's difficult morally. It's difficult because it involves quite a lot of data. What do you do with all this health data? What's allowed within the framework of collecting data? So that, I think, has been a really big challenge.

[00:09:48] - Lucy Lewis
And, for me, it will be interesting to see whether it evolves into something that means that employees are more generally happy to share information about health related issues and work. But that's been a key challenge.

[00:10:00] - Lucy Lewis
And the other one is slightly broader, and Doug I don't know if you've experienced this in your business. But I think across bigger corporate businesses, there's been a focus on skills and redefining the skills that businesses want and businesses need. And I think pre-pandemic there was a real focus on task-orientated skills. What are the skills that people need to deliver the task that they do in that job? They need good communication skills, for example.

[00:10:30] - Lucy Lewis
And I think what we're seeing now, as a challenge to businesses, is actually a realisation that a broader set of skills are required. We're seeing a much greater focus on things like resilience, adaptability. Skills that aren't so task and role delivery-based, but more environmental-based. The people that we need within our business need to have developed a set of skills outside just their ability to deliver their job.

[00:10:53] - Doug Foulkes
Your last comment goes back to your earlier statement about what you were thinking of as the future of work pre-pandemic is right there with us now. Just doing the job isn't enough because ultimately that's going to go away.

[00:11:08] - Lucy Lewis
Yeah and I think many businesses, and we've talked actually quite a lot about this within the future of work, how many businesses from a strategic perspective were focussed on what we used to call business planning, essentially trying to predict what was around the corner and plan for it. And the thing that we've learned from the pandemic, and the real shift has been, that actually that kind of planning, that kind of strategic business making focussed on essentially trying to predict the future is impossible.

[00:11:36] - Lucy Lewis
And actually what you need to do is plan to be prepared. You need to be able to respond to what's around the corner, the things that you might not be expecting. And that shift in dynamic is quite interesting. Business leaders taking a step back and saying, well, actually, maybe that kind of corporate strategy of: our five-year plan is going to be this based on our reading of the market, needs to be a broader strategy focussed on: how can we as a business ensure that we have got everything we need to be able to respond to the unexpected?

[00:12:08] - Lucy Lewis
And a lot of that is in the people. What are the skills our leaders need? What are the skills that the people that we rely on to deliver the services in a service-focussed business? What are the skills that they need? And I think that dynamic is shifting. It's shifting to be more adaptable, more resilient, better able to respond to crisis, really able to respond to a fast moving pace of change.

[00:12:35] - Claire Haidar
I want to go down a little bit of a rabbit hole with you there, Lucy. If we can come back to the health data piece. As you say, it is such a grey area and it's a really tricky area for companies to be navigating right now. What are the frameworks or the guardrails that you as an employment law firm have provided to your customers? Is there a framework that a business leader listening to this podcast can go, okay, that's a good way for me to help my leadership team or my shareholders think through this issue?

[00:13:11] - Lucy Lewis
One of the things that's really interesting about health data, and it's indicative of a broader challenge for business leaders, is that many businesses are global in nature, many businesses want to take a global approach to things like, let's say vaccination, because that's the most obvious thing. We want to take a principled stand. Many business, particularly US headquartered businesses, want to say that we will mandate vaccination because that's in the greater public good. But actually, it's really difficult to put in place those guardrails because globally, the rules on these things are very different.

[00:13:45] - Lucy Lewis
And even within the part of the world where I am across Continental Europe, we have very different approaches to things like that. So I think the answer to the question about the guardrails is actually, you have to take a step back from that instinctive desire to be global and actually say that the way that people feel about this is quite culturally different across different parts of the world. And you do need to engage on a local level.

[00:14:17] - Lucy Lewis
And that local engagement, I think, needs to cover two things. What are the mandatory laws in those countries? And most of the requirements are data related requirements and they're not the same across the world. But actually this bigger cultural piece that, with the pace of globalisation, we sometimes think of ourselves as being quite similar. And then you come across something, and vaccination is a good example where culturally you realise that there are really big differences. And the thing that we've learnt in our work are the businesses that have succeeded in having, as an example, good and strong vaccination policies, are the ones that get it right culturally, they engage in the right way.

[00:14:55] - Lucy Lewis
So in the UK, as an example, successful businesses would probably not want to mandate vaccination. Culturally, we're instinctively opposed to being told what to do in the UK. But to engage with employees about why you're doing it, why it's important, why you're encouraging people to do it, and invite people to come and explain to you if they don't fall into that category. That's really successful. But a lift and shift of that model would obviously be less successful in other countries.

[00:15:25] - Lucy Lewis
And it's a really good example of cultural differences and the challenges in having a one-size-fits-all approach to two issues.

[00:15:33] - Claire Haidar
Lucy, that's really profoundly wise on many levels what you've just shared and if I can translate that back into the US, for example. And even if I just look at the greater Pan-Asia region, I think what I'm about to say for the US would apply there as well, is that the US is essentially, when it comes to an issue like this, the equivalent of 50 different states and 50 different cultures. It literally is.

[00:16:01] - Claire Haidar
People think of the US as one big country, but it actually isn't. Do you know what I mean? The culture on the East Coast is so vastly different to the culture on the West Coast. And if you go to the West Coast, just the north and the south, and the difference between those, there's vast cultural difference there.

[00:16:16] - Claire Haidar
So using culture as a north star to, and where you were saying, go down to the grassroots level there and really engage at that level, it's harder work. I think a company needs to prepare itself for needing to resource to do that. But ultimately, it's going to yield greater benefits for the company rather than a centralised approach.

[00:16:39] - Lucy Lewis
Yeah, I think that's right. And when we look at culture, and we haven't talked about it, but culture is part of that. That idea of businesses wanting to define a broader purpose. My view again about the successful strategic adoption of those policies is you're able, under a broader umbrella, to set out this is our wider purpose, this is our goal from a sustainability perspective, this is how we intend to respond to the climate crisis, but allow the implementation of that to be adapted on a local level.

[00:17:09] - Lucy Lewis
And you're right, that does require a greater investment in resource. But I think the successful businesses are the ones that do that. But I think there can definitely be a global alignment.

[00:17:20] - Doug Foulkes
Lucy, just before we move away from the first part around trends, could you tell us what, if we could call it the easy-to-change things that companies have been doing? What are in the quick-wins, if you like?

[00:17:33] - Lucy Lewis
So I think, if I try to answer that in the context of the themes I've given. The easiest quick-win and the one that we see most often that won't come as a surprise to anyone, is embrace flexible working. And I mean that in the context of where people work. So the move out of cities to the country away from traditional places of work, the hours that people work, how they manage their life around their work: so how they manage their childcare, their elder care responsibilities.

[00:18:02] - Lucy Lewis
So looking in a much more open, flexible working. We're seeing that anyway, I'd be surprised if anybody listening isn't doing that.

[00:18:10] - Lucy Lewis
And then some of the things that we're seeing, trying to give some specific examples of things that I think are quick-wins that businesses might be less focussed on. We're seeing quite a lot of work around diversity and proactive steps in terms of policy. So looking at the equality between parents of parental leave. So how much pay and leave do you allow mothers as opposed to fathers? That's an area that potentially is a quick-win in businesses. Looking at diversity of shortlists and hiring and ensuring that you have a broad, contextual approach to experience. We're seeing a lot more work, a lot of investment around diversity, particularly on recruitment.

[00:18:52] - Lucy Lewis
And then similarly, and again I think this possibly won't come as a surprise to anybody, but we're seeing quick-wins around the climate crisis and sustainability, particularly around travel policy. So the kind of meetings that people need to travel for, the sorts of things that people would now be putting on on Zoom. If you look at that theme about acting with purpose around the climate crisis and sustainability, we're doing a lot of work in the space of travel policies, expenses policies, cutting down carbon emissions through travel.

[00:19:23] - Claire Haidar
I can actually speak to the diversity one from our lens. Interestingly enough, before the whole movement really became a thing, it started as unrest, but it actually then became a true movement at a global level last year around George Floyd's death and everything that sprung up from that.

[00:19:41] - Claire Haidar
But prior to that, in the company, we actually myself and my co-founder, Tracey, sat down and we were just like, we're a small company, this doesn't have to be a huge scientific study in terms of, oh, this is our policy and we're going to write it up and everything. It's just like, no, these are just a set of basic principles that we would like the entire team to be cognitive of when they're sitting in an interview.

[00:20:04] - Claire Haidar
You know what I mean? And we're going to send this to our recruiting team and say, be mindful of this. Look out for this. We want this.

[00:20:11] - Claire Haidar
And it's interesting how just having that conversation, disseminating that information at a very simplistic level across the company has brought a level of awareness that wasn't there before. We were all very diversity conscious as individuals, but because it had never been collectively stated across the company, you couldn't actually see it coming to life in the company, and now you can see it. So I think that's a very important point that you've made there around it is actually a quicker win than some people might think it is.

[00:20:39] - Doug Foulkes
So that brings us to the end of part 1 of this podcast. Be sure to check out the other two parts of our conversation with Lucy on Spotify, Google or Apple Podcasts, or on WNDYR's website. That's WNDYR.com. From Claire and myself, we'll see you soon.

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