ELiAction News: December 2017
Welcome to the December edition of the Employment Law in Action newsletter providing you with useful information regarding changes to employment legislation, best practice and latest case information.
This month, we have a ‘workers’ special. Whilst the UK economy depends on its non-employee workforce, the challenges that are posed in terms of worker protection and government revenues are plentiful. We report on the latest developments.
New legislation for modern employment
The Work and Pensions Committee and the Business, Energy and Industrial Strategy Committee have joined together and produced a report called ‘A framework for modern employment’ which includes a draft Bill that it says would take forward the best of the Taylor Review recommendations.
The widely heralded Taylor Review was published back in July, and the lack of Government response has led some to presume it was quietly being ignored. However, the mantle has been taken up in this new report from the joint DWP and BEIS committees. It is not known whether the report’s recommendations will be adopted but employers should take note of the direction of travel. Its recommendations include:
- The Government to legislate to implement a ‘worker by default’ model to apply to companies who have a self-employed workforce above a certain size.
- In order to compensate workers for uncertainty, the Government will work with the Low Pay Commission to pilot for workers who work non-contracted hours, a pay premium on the National Minimum Wage and National Living Wage.
- The Government to extend the time allowance for a break in service while still accruing employment rights for continuous service from one week to one month.
- The Government to create an obligation on employment tribunals to consider the increased use of higher, punitive fines and costs orders if an employer has already lost a similar case.
- The Government to extend the duty of employers to provide a clearly written statement of employment conditions to cover workers, as well as employees.
- People on worker contracts, as well as employees, should be counted towards the 50 workers needed before a company is covered by the ICE regulations.
In the case of King v The Sash Window Workshop Ltd and another C-214/16, a worker was wrongly treated as self-employed, and so not given a right to paid holiday under the Working Time Directive.
The European Court of Justice has held that EU law requires that a worker knows that he is going to be paid before he takes leave; and a worker can carry over and accumulate such untaken leave until the end of the employment relationship.
The matter will now return to the Court of Appeal which will have to decide whether the WTR 1998 can be interpreted consistently with the ECJ’s ruling. As a ruling based on the EU directive, any ruling will only apply to the four weeks’ leave derived from the Directive, not the additional 1.6 weeks available under the WTR 1998.
Whilst this decision is restricted to cases involving holiday which is not taken because it was not paid, it may be used as a point of argument is cases of underpaid holiday and have wide reaching effects. It casts doubt on the legality of the Deduction from Wages (Limitation) Regulations, which limits most unlawful deductions claims to two years before the date of the ET1 and opens to challenge the decision in Bear Scotland that stopped an unlawful deductions claim wherever there was a longer than 3 month gap.
Can workers work 12 consecutive days without a Weekly Rest Break?
In the recent case of Maio Marques da Rosa v Varzim Sol, the European Court of Justice (ECJ) held that the weekly rest period for workers does not necessarily have to be granted the day following six consecutive working days. It may be granted on any day during each seven-day period.
A redundant casino worker in Portugal claimed his employer had not given him a weekly rest period of 24 hours after six consecutive working days. The casino operated 12 hours a day, 364 days of the year.
The ECJ held that there was no requirement for weekly rest to be provided after six consecutive days of work, it can be provided within each 7-day working period. Therefore, a working pattern with a rest day at the start of one 7-day period and another rest day at the end of the following 7-day period, permits working 12 consecutive days under the Working Time Directive.
Uber loses appeal on worker status- (Uber BV and others v Aslam and others UKEAT/0056/17.)
Uber lost a key legal battle after a London Employment Tribunal upheld a ruling that they must treat their drivers as “workers” and therefore entitled to benefits such as holiday pay and National Minimum Wage.
The EAT rejected Uber’s argument that it was simply a technology platform operating as an agent for drivers by putting them in touch with passengers and that it was in no way a provider of taxi services.
The EAT upheld the Tribunal’s decision that the drivers were engaged as workers, for as long as they were in the territory (were authorised to work), had the app switched on and were ready and willing to accept bookings. This period of time counted as working time under the WTR 1998 as well as the number of hours worked for the purposes of the national minimum wage provisions.
It was reported that Uber intended to appeal the EAT’s decision and appeal direct to the Supreme Court, leapfrogging the Court of Appeal. This has since been refused and the appeal will now be heard by the Court of Appeal sometime next year.
Deliveroo riders are not “workers” and therefore not entitled to trade union recognition
The Central Arbitration Committee (CAC) has ruled that Deliveroo riders are self-employed and not workers, within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992, as the riders who carried out the deliveries had a contract which entitled them to a ‘right to provide a substitute’. Meaning, that the IWGB’s application to represent the riders in Camden and Kentish Town was not accepted.
This was an express contractual provision in which Deliveroo had made it clear that all riders had the ‘right to substitute’ themselves both before and after they have accepted a particular job. Although the right of substitution was largely unnecessary for the riders, given their flexibility to accept or decline jobs, this did not mean it was not genuine.
In giving comment and advice in the newsletter, we do not assume legal responsibility for the accuracy of any particular statement. If you have specific views which you wish to discuss we would be pleased to assist you.
If you would like advice on how any of the above articles apply to your business, please contact one of the ELiAction team on 01494 817193 or info@ELiAction.com
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