In a deal reached earlier this month with one of the UK’s largest trade unions, the courier company Hermes is offering its self-employed drivers the option to obtain some of the rights enjoyed by regular employees, including a guaranteed minimum wage and holiday pay, the Guardian reported:
Under the agreement with the GMB union, Hermes’ 15,000 drivers will continue to be self-employed but can opt into contracts with better rights. The deal comes after almost 200 Hermes couriers won the right to be recognised as “workers” at an employment tribunal last summer in a case backed by the GMB. Under employment law, “workers” are guaranteed rights including holiday pay, the legal minimum wage, minimum rest breaks and protection against unlawful discrimination.
The GMB has been active in advocating for the rights of British workers in the gig economy, also backing similar labor tribunal cases against other companies operating on an independent contractor model, including Uber, which lost a landmark case in 2016. Other British unions and union federations have also supported claims regarding the rights of gig economy workers, with tribunals ruling in favor of the workers in most of these cases. The settlement reached this month means that Hermes will drop its planned appeal against the ruling last year, while the GMB will refrain from pursuing further litigation against the company.
The “worker” classification in UK employment law defines a space between employees and the self-employed, but the tests for classifying workers as such are primarily defined by case law and increasingly unclear as technological shifts have brought about changes in the way people work. The Taylor Review of modern working practices recommended in its 2017 report that the government relabel “workers” as “dependent contractors,” write a clearer definition of this category into law, and make it the default status for companies that have a self-employed workforce above a certain size. The government said last year that it would adopt most of the review’s recommendations, but did not commit to writing this “worker by default” model into law.
Yvonne Gallagher, A partner at the London-based law firm Harbottle and Lewis, commented to Personnel Today that the Hermes deal would raise some questions about these drivers’ tax and national insurance obligations:
The UK on Monday enacted a sweeping series of reforms to its labor laws, raising fines on employers for deliberately harming their workers and obliging them to give employees details of their legal rights from their first day on the job, among other changes. Based on the findings issued last year by the Independent Review of Employment Practices in the Modern Economy, led by Matthew Taylor, a former advisor to Tony Blair, the reforms are intended to strengthen the rights of agency workers and those participating in the gig economy, as well as to step up enforcement of existing labor protections. According to Personnel Today, the new legislation will:
- repeal the Swedish derogation, which allows organisations to pay agency workers on cheaper rates than permanent staff;
- extend the right to a written statement of rights from a person’s first day in their job to workers, going further to confirm their eligibility for sick leave and pay, as well as other types of paid leave including maternity, paternity and shared parental leave;
- quadrupling the maximum fines handed out at employment tribunals to employers that have shown malice, spite or gross oversight from £5,000 to £20,000;
- extending the holiday pay reference period from 12 to 52 weeks to ensure that those in seasonal roles are able to take the time off they are entitled to; and
- lowering the threshold required for a request to set up information and consultation arrangements from 10% of employees to 2%.
In a report called the “Good Work Plan,” the government also pledged to enact further legislation so that employment classification tests “reflect the reality of the modern working relationships.” The Taylor Review had recommended that the employment status currently known as “worker” be renamed “dependent contractor” and that workers in this category be entitled to employment protections like the minimum wage, sick leave, and holiday pay. It also recommended enacting legislation to clarify the legal tests for different employment classifications, rather than relying on case law as the UK currently does.
The government’s reform package did not, however, ban the controversial practice of zero-hour contracts. Taylor had concluded that abolishing these contracts would do more harm than good, though his review also recommended that workers in zero-hour arrangements be entitled to request guaranteed hours after working for their employer for 12 months. The government of Ireland, in contrast, has said it plans to end most zero-hour contracts with a bill expected to pass the legislature in the spring. Whitehall’s decision not to ban zero-hour contracts drew criticism from unions, the Guardian reported on Sunday, with Trades Union Congress general secretary Frances O’Grady saying the government had missed an opportunity to strengthen the rights of a vulnerable segment of the workforce:
The March 2019 deadline for negotiating terms for the UK’s departure from the European Union is fast approaching, while major points of contention between London and Brussels still remain to be ironed out. While the likelihood of a “no-deal” Brexit, in which the UK would crash out of the EU with no special trade arrangements, is generally considered low, the final outcome remains uncertain with just six months to go, so British companies like London-based financial firms have been taking steps to prepare for that contingency. At the same time, European manufacturers operating in the UK have made clear that they might have to pull out of the country if the deadline passes without a deal, as the removal of the UK from the European customs union would be hugely disruptive to their supply chains.
At the same time, Europeans already living legally in the UK have been assured that they will be allowed to remain under any deal, but it is less clear what will happen to them if there is no deal. Trade unions and other labor groups have also expressed concern that Brexit could mean a reduction in the rights employees enjoy under labor laws grounded in EU policies. The bill drafted last year for removing the UK from the legal, political, and financial institutions of the EU preserves regulations derived from European labor laws, but employee advocates still fear that a weakening of these rights is in the pipeline; the possibility of a no-deal outcome compounds those suspicions.
In the past week, the government has issued several statements meant to reassure employees and employers that a no-deal Brexit remains unlikely and will have no such dire consequences if it does occur. A guidance document issued last week as part of a series of advice papers concerning a potential no-deal Brexit addressed the issue of workers’ rights, saying there would be no change to these protections in any event, Personnel Today reported:
[T]he government said domestic legislation already exceeds the level of employment protection provided under EU law. It intends to make small amendments to the language of workplace legislation to reflect that the UK will no longer be a member of the EU. No policy changes will be made.
A new analysis from the Trades Union Congress finds that one in 12 employees in the UK are not receiving the full amount of annual paid leave to which they are entitled by law, while 1.2 million are not getting any paid leave at all. Adam McCulloch highlights the repot at Personnel Today:
Agriculture (14.9%) was the sector where the highest proportion of workers was likely to miss out and retail was where the highest number of staff were losing out (348,000 people). … Employees are entitled to 28 days’ annual leave (pro rata) including public holidays but, according to the unions body, unrealistic workloads, managers failing to agree time off and a failure by businesses to keep up with the law was behind the high numbers losing out.
The TUC is urging HMRC to be given powers to clamp down on employers who deny staff their statutory holiday entitlement. This would include the power to ensure that workers are fully compensated for missed holidays.
The TUC report comes just a few months after a Glassdoor survey came out showing that only 43 percent of UK employees were using more than 90 percent of their holiday entitlement, while another 40 percent were using less than half of it. The TUC analysis was based on unpublished data from the Labour Force Survey conducted by the UK’s Office of National Statistics; Glassdoor’s figures came from a 2,000-person online survey carried out in April.
Whereas the Glassdoor survey focused on whether employees were using their leave entitlement, the TUC is more concerned with whether some employers are denying their workers the right to use it. “Employers have no excuse for robbing staff of their well-earned leave. UK workers put in billions of hours of unpaid overtime as it is, TUC general secretary Frances O’Grady said. “The government must toughen up enforcement to stop bosses cheating staff out of their leave.“
Deliveroo, an Uber-like platform that connects restaurants with delivery workers, is one of several UK companies whose employment practices have been the subjects of public scrutiny and litigation over the past two years as the country wrestle with the contradictions between its existing labor laws and the rise of the “gig economy.” Deliveroo was sued last year by the Independent Workers Union of Great Britain (IWGB), which argued that delivery couriers working through its platform were not self-employed independent contractors as the company contended. While plaintiffs in other gig economy classification suits have succeeded in the British court system, Deliveroo prevailed last November, when the Central Arbitration Committee found that its delivery workers were indeed self-employed, because they had a contractual right to allocate a substitute to do the work for them.
The IWGB appealed to the High Court of Justice, however, from which the union secured a ruling last week that it could pursue a partial judicial review of the CAC’s decision as a human rights issue, TechCrunch’s Natasha Lomas reported on Thursday:
[T]he judge only gave permission for a judicial review on “limited grounds”, relating to whether certain categories of self-employed individuals should have the ability to unionize. “We have been given permission to argue that Deliveroo is breaching the human rights of our members. This is no longer an employment rights matter, this is a human rights matter,” a union rep said outside court after the ruling. …
UK plumber Gary Smith has won his case against his former employer Pimlico Plumbers in the Supreme Court, which rejected the company’s contention that Smith had been self-employed and upheld his claim to basic workers’ rights like paid leave, Jo Faragher reports at Personnel Today:
Smith’s case against Pimlico Plumbers, which has been running since 2011, is the latest in a long line of legal challenges on employment status, and “is in line with a number of recent decisions relating to gig economy workers”, according to Jeremy Coy, an associate in the employment team at law firm Russell-Cooke.
He said: “The judgment of the UK’s highest court underlines the point that simply labelling workers ‘self-employed’ does not guarantee the corresponding legal status. The nature of the relationship and the degree of bargaining power and obligation between the parties is crucial in determining workers’ rights.”
Smith had prevailed in the Court of Appeal last year, but Pimlico challenged that ruling in the high court, which took up the case in February. The company considered Smith a self-employed independent contractor, and he was described as such in his agreement with Pimlico and in his tax filings. Smith did not claim to be an “employee” of the company, but rather a “worker”—a designation specific to UK law that falls between “employee” and “contractor” and entitles an individual to certain rights like a minimum wage and paid annual leave. The Court of Appeal had ruled in Smith’s favor largely on the basis that his contract with Pimlico required him to provide his services personally, such that he could not re-subcontract the work out to someone else.
In ruling for Smith, however, the Supreme Court stressed that its decision rested on the unique facts of the case and did not establish any new legal guidelines for employers to follow in determining whether they could safely classify workers as self-employed, much to the dismay of UK employers and their attorneys:
Amazon has become the latest company to draw fire from labor advocates in the UK over alleged mistreatment of independent contractors: The GMB, a general trade union representing a wide swath of the British workforce, announced on Monday that it was suing three delivery companies that contract with Amazon to fulfill orders in the UK: Prospect Commercials Limited, Box Group Limited and Lloyd Link Logistics Limited. The union alleges that delivery drivers working for these companies were incorrectly classified as self-employed, denied statutory rights as employees, compelled to work unsafely long hours, docked pay for failing to meet impossible quotas, and in some cases retaliated against after raising concerns about their conditions.
The claimants all worked for the companies as couriers, delivering parcels for Amazon. GMB say the drivers were employees, and the companies used the bogus self- employment model to wrongly deny them employment rights such as the national minimum wage and holiday pay. The drivers were required to attend scheduled shifts that were controlled by Amazon, meaning they did not have the flexibility that is integral to being self-employed. In this situation, the couriers were treated like employees in terms of their working hours, GMB Union contends they should be treated as employees in terms of their rights too.
Two of the members are also claiming that they were dismissed because of whistleblowing, saying that their roles were terminated because they raised concerns about working practices[.] … These whistleblowing claims are also being brought directly against Amazon on the basis that it was Amazon who determined the way that the drivers should work.
Tim Roache, general secretary of the GMB, tells TechCrunch’s Natasha Lomas that the union considers it “absolutely galling” that Amazon subjects these workers to “unrealistic targets, slogging their guts out only to have deductions made from their pay when those targets aren’t met and being told they’re self-employed without the freedom that affords.” Amazon, for its part, said in a statement to TechCrunch that the practices alleged in this lawsuit are not representative of the dozens of contractors the e-commerce giant uses to provide delivery services in the country: