Uber drivers are now employees – but is it a victory for workers’ rights?
The Supreme Court decision that Uber drivers in the UK will now be entitled to the national minimum wage, holiday pay and rest breaks has been hailed as a win for workers’ rights, but it won’t all be positive.
Over the past few years there have been numerous consultations on the subject of the gig economy and worker status, with the idea of enabling good work for all. The problem is that what defines ‘good work’ will vary based on the individual; and this was very clear in the consultations.
The key benefit of lots of gig economy work is flexibility, and many of those who engage in this type of work do so for that reason. There is no obligation to turn up to work at a set time, to work for a particular length of time, or even ever work for the company again. Also, the work is not exclusive to one company, enabling many individuals to ‘multi-app’.
The Supreme Court decision that Uber drivers are workers mean that Uber will have to make changes to their operating model, thereby reducing flexibility. Uber and Deliveroo responded that if they had to pay the National Minimum Wage/Living Wage as a response to worker status, they would need to introduce:
- Exclusivity to ensure that the individual was not working for others whilst logged on to their app
- Set shift patterns during which the rider/driver was obliged to accept work offered
- Restrictions on the number of riders/drivers who could be logged on at any one time
- Restrict the number of people engaged as workers
- Absorb the cost of greater controls into fares charged to customers, therefore inflating fares and reducing the amount paid to drivers during periods of high demand
Many apps work with variable pricing, reacting to demand and supply. Those working with these apps can therefore benefit from higher earnings in periods of high demand, and vice versa.
In 2019 Hermes reacted to the decision that their drivers are ‘workers’ by agreeing a deal with the GMB union called Self Employed+ status. Drivers can opt in to gain paid holidays and a minimum wage, but in return have set routes (so can’t combine with other work) and cannot access the premium rates (at times of high demand). This demonstrates the trade-off between employment protections and flexibility, and it will be very interesting to see the next steps taken by Uber.
While this decision will no doubt be welcome by some drivers, others will miss the flexibility and the ability to work several gigs at a time, thereby being worse off as a result.
Government launches consultation on mandatory jabs for care home workers
The government is considering making coronavirus vaccinations mandatory for care home workers looking after older adults amid calls for stronger rules from some in the sector.
As part of a five-week consultation, launched on 14th April 2021, the Department of Health and Social Care will look at requiring care home providers to only deploy workers who have received their Covid jab.
Health secretary Matt Hancock said making vaccines a condition of deployment was “something many care homes have called for” and that “we have a duty of care to those most vulnerable to Covid-19, so it is right we consider all options to keep people safe”.
According to social care working group SAGE, 80 per cent of staff and 90 per cent of residents need to be vaccinated to provide a minimum level of protection against outbreaks of coronavirus. However, the figures suggest only 53 per cent of older adult homes in England are currently meeting this threshold.
It is a professional duty for care home staff to accept the vaccine unless there is a medical reason they should not,” he added.
However, experts critical of mandatory vaccinations warn that such policies could damage employee relations and potentially leave employers open to legal challenges. Frances O’Grady, general secretary of the TUC, branded the consultation as “ill-thought through” and “a further blow to care workers’ morale”.
“We all want to get as many care workers vaccinated as possible; forcing workers to get the jab will harm trust and employee relations,” O’Grady said, adding that ministers should instead strongly encourage every care worker to get vaccinated and make it as easy as possible. This could mean giving paid time off for appointments and guaranteeing sick pay for any recovery time afterwards.
Insecure workers almost 10 times more likely to receive zero sick pay
Trade Union Congress urges businesses to stop treating staff as ‘disposable labour’ and call on government to align statutory sick pay with the real Living Wage.
More than two thirds of insecure workers in the UK receive zero pay when off sick, a new survey has found, prompting calls for greater protections and the abolishment of zero-hours contracts.
A poll by the TUC and Britain Thinks, of 2,231 UK workers revealed 67 per cent of those engaged in insecure work – defined as workers whose contracts do not guarantee regular hours or income or those who are in low-paid self-employment – received no pay when they were off sick.
This is compared to just 7 per cent of secure workers, suggesting insecure workers are almost ten times more likely than their securely employed counterparts to not receive any pay when sick.
Moreover, insecure workers reported fearing their employer would find someone else to do their job if they didn’t turn up to work – particularly for those on zero-hours contracts as with no guaranteed hours, their employer is not obliged to offer them work.
TUC findings also revealed Covid mortality rates for those aged 20-60 was almost twice as high for those in insecure work when compared to other occupations. Among men the Covid mortality rate was 51 per 100,000 for those in insecure work, compared to 24 per 100,000 in less insecure roles. Among women, the mortality rate was 25 per 100,000 for those in insecure work, compared to 13 per 100,000 in less insecure occupations.
Among its recommendations, the TUC urged the government to abolish the minimum earnings threshold for SSP, which would extend coverage to another two million workers; remove the waiting period for sick pay; and increase sick pay to £330 a week – the equivalent of a week’s pay at the real living wage.
Figures from the Office for National Statistics have previously shown that nearly seven million UK workers don’t qualify for SSP. Five million don’t qualify because they are self-employed and 1.7 million as they do not meet the earnings threshold.
One in five employees feel they receive less recognition working from home
It is claimed that businesses need to stop equating ‘face time’ with productivity and move away from the culture where hours worked is linked to performance and commitment.
A fifth of UK workers feel they get less recognition within their career as a direct result of working remotely despite working harder, research has found.
The poll of 1,085 employees, conducted by Ezra, found 20 per cent felt they received less recognition from their workplace since they started working remotely, while 72 per cent said they received about the same. Just 8 per cent reported they received more recognition.
This is despite 55 per cent saying they were more likely to work additional hours since working remotely. It should be taken as a reminder to businesses of the importance of the informal interactions that often happen in a physical workplace.
Socialising at breaks and on the office floor gives an opportunity for personal thanks and praise and encouragement. Even when management does remember to thank their staff, this could feel impersonal to someone receiving this thanks on a video call with hundreds of colleagues.
Businesses need to remember the importance of recognition for employee engagement and motivation, now more than ever.
Working remotely does not mean that people cannot be recognised effectively, whether that’s peer-to-peer recognition or from the wider organisation through more formal schemes. Businesses should consider sharing stories of their staff’s efforts as a way of acknowledging significant contributions.
One in four employers face shortage in basic digital skills
Nearly a quarter of employers say their workforce lacks the basic digital skills they need, while a report finds the education system is not sufficiently meeting this demand.
Although 92% of organisations state that having basic digital skills is important for their employees and four in five job vacancies require them, 23% are facing a significant gap according to a report from three skills organisations.
It defined basic digital skills as having a proficiency with common software such as Microsoft Word and Excel; the ability to communicate digitally; the ability to process digital information and content; and the ability to learn new digital skills.
Advanced digital skills – such as having an in-depth knowledge of areas like computer-aided design or coding – are becoming increasingly important, with 27% of employers requiring the majority of their workforce to have these abilities and 60% expecting their reliance on advanced digital capabilities to increase in the next five years. However, 37% say their workforce lacks these skills.
Although 88% of young people recognise that these skills are important for their career, only 18% feel they have the advanced digital skills that employers need.
While take-up of computer sciences has grown at undergraduate and postgraduate level, participation in ICT subjects in school and further education has declined, the research by the Learning and Work Institute, education consultant WorldSkills UK, and engineering skills advocate Enginuity claims.
Since 2015 there has been a 40% decline in pupils taking ICT subjects at GCSE.
As a result, less than half of employers think young people are leaving full-time education with sufficient advanced digital skills.
Increase in unemployment rates of young and ethnic minority people
Young people have seen the worst rise in unemployment during the pandemic, according to new research, with young black workers nearly twice as likely as others of the same age to be unemployed. A report from the Resolution Foundation has found that in the last quarter, the unemployment rate among 18 to 24-year-olds has increased from 11.5% to 13.6% – the highest quarterly rise since 1992.
The report said the disproportionate impact of coronavirus on young people was likely because they were overrepresented in the sectors hardest hit by the crisis, including hospitality and leisure. It goes on to report that while the furlough scheme has sought to minimise job losses, the pandemic has created a generationally unequal unemployment surge, and widened pre-existing gaps between different ethnic groups. The report’s authors is calling on the Government to expand and extend its Kickstart scheme for young people, and to ensure those from hard-hit ethnic backgrounds have access to the scheme, alongside quality education and training options as well as financial support for full-time study.
Young people and minority ethnic workers were disproportionately more likely to be in less secure employment before the pandemic, such as zero-hours or fixed-term contracts, or cash-in-hand jobs and these kinds of jobs are less likely to have been protected by furlough. It is argued that a job support and creation schemes could be put in place to help people find high-quality, secure jobs, and income support to help those who can’t find employment.
Shared Parental Leave not the same as Adoption Leave
The recent case of Price v Powys County Council has found that a man on Shared Parental Leave is not entitled to the same benefits as a woman on Adoption Leave.
The Claimant took Shared Parental Leave (SPL) and received pay equal to Statutory Maternity Pay but his employer’s policy was that employees on Adoption Leave received full pay. He compared himself to a female colleague on Adoption Leave and raised a claim of Sex Discrimination, stating that he was entitled to full pay as SPL was no different to Adoption Leave.
His claim was dismissed because he was not regarded as a “comparator” to a woman on adoption leave. It was found that Adoption leave is materially different to SPL, not least because the purposes of Adoption Leave go beyond providing childcare.
“Banter” was harassment; recent unfair dismissal case
A firefighter who was sacked after offending a short, gay colleague by calling him ‘half a man’ was found to have been fairly dismissed. The employee nicknamed fellow fireman Jonny Metcalfe ‘Arthur’ in reference to his size, but Mr Metcalfe took it to be a derogatory reference to his sexuality.
An employment tribunal heard that the nickname was derived because “Stumpy” or “Dwarf” were felt to be inappropriate alternative nicknames. When challenged, the employee stated that he meant no harm and it was “just banter”. He denied that it was in any way a derogatory homophobic reference to Mr Metcalfe’s sexuality, explaining it by saying, ‘I call him Arthur, Arthur man, half a man… because of his size.
However, the tribunal heard investigation that the conversation had left Mr Metcalf feeling ‘offended and emotionally upset’ and he believed it was degrading as it referred to him being gay. The fire service investigation concluded that it was not the intention that the nick name was homophobic but recognised that it had nevertheless caused offence. It was found that the employee had been previously warned against using inappropriate language and that his conduct had not improved since this warning. It was also found that the use of such “banter” did not ‘demonstrate understanding in relation to dignity at work and inappropriate use of language’.
The employee was summarily dismissed, and having lost an appeal, raised a claim for unfair dismissal and breach of contract against North Yorkshire Fire and Rescue Service. The Employment Judge ruled that it was ‘reasonable’ for Mr Metcalfe to have viewed the comments as a reference to his sexual orientation and taken offence and dismissed his claim of unfair dismissal.
Interestingly, however, the Tribunal ruled that the conduct did not amount to gross misconduct and that therefore the employee was entitled to notice pay.
White employee was discriminated against
A white employee has won a race discrimination claim in the Employment Tribunal after being repeatedly teased about being English by Asian employees. The transport administrator was one of five white British employees out of 16 staff.
The tribunal found that he was the victim of race discrimination and harassment and ordered his former employer to pay him £2,500 compensation.
While the company claimed staff had ‘just been joking’, the panel disagreed, adding in its ruling: “Many extremely unpleasant behaviours can be dressed up as jokes but it is no excuse”. The tribunal found that the employee was the victim of numerous discriminatory comments made by his fellow colleagues, including that senior employees had said, ‘English drivers drive slowly’ and that the English were workshy.
At the tribunal another employee had argued that the comments were ‘mere jokes’ made by colleagues by his ‘perceived friends’ and that the employee would ‘join in’ but when he was dismissed, amid concerns about performance, attendance and time keeping the employee felt that the real reason was his race.
The Tribunal ruled that the comments were serious in that they created a “hostile and/or intimidating environment” because they were made by a number of senior individuals, over a period of time, repeated and in a workplace in which the claimant was a minority.
The employee was awarded £2,500 for injury to feelings and a further £961.74 for a breach of employment law.
IR35 Reform – What does it mean for businesses?
The long-awaited IR35 reforms came into force in the UK on 6 April 2021. To put simply, IR35 is a tax anti-avoidance rule designed to combat “disguised employment” in situations where an individual contractor is providing their personal services (i.e. their labour) to an end-user via their own intermediary, such as a personal services company or partnership.IR35 applies when the contractor would be an employee (or officeholder) for tax purposes if they were hired directly by the end-user. If IR35 applies, PAYE and NICs must be operated in respect of the fees paid to the personal services company.
As per the old rules (pre April 2021), independent contractors operating under limited companies, the self-employed individuals in question, had autonomy over how they managed their tax status and dealings with HMRC. However, the reforms now include such contractors under the umbrella of IR35, seeing a shift in responsibility for assessing workers’ employment status for tax purposes from the individual employees to the employers themselves. Businesses will hold sole responsibility for assessing the employment status of their independent contractors and the limited companies they may be operating under and must take reasonable care in making that assessment and confirm its assessment together with reasons in a Status Determination Statement (SDS). They then must provide the SDS to the contractor before making the first payment to them. In practice, we expect that contractors accepting a new assignment are likely to want to know in advance whether they will be assessed as within the scope of IR35.
Businesses are being asked to perform a task that they have never had to tackle before, and there is significant regulatory risk in the case of non-compliance and therefore it’s of paramount importance to understand this new responsibility and act accordingly.