What’s the status of worker status?
Last year saw a flurry of worker status claims hit the headlines, particularly in respect of drivers and couriers.
Last year saw a flurry of worker status claims hit the headlines, particularly in respect of drivers and couriers. The Court of Appeal held that Uber drivers were workers, as did the EAT in respect of Addison Lee couriers. Deliveroo bucked the trend with the High Court dismissing a judicial review challenging the decision of the Central Arbitration Committee which held that Deliveroo riders were not workers.
The Good Work Plan
In December 2018, the Government published its Good Work Plan outlining its proposals for reform of certain aspects of employment law. These included proposals for greater clarity over the determination of status, including aligning the tests for both taxation and employment purposes, and support for the recommendations made by Matthew Taylor in his report (Good Work: the Taylor Review of Modern Working Practices) that the tests for status should place more emphasis on control and less on the right to substitute.
The Government indicated that further independent research had been commissioned to help it understand how best to support those with uncertain employment status. However, one of the recommendations in the Taylor Report was that the burden of proof in status claims should be reversed so that the employer has to prove that the individual is not entitled to the relevant employment rights and not the other way round (subject to certain safeguards to discourage vexatious claims). The Government confirmed that it would return to this recommendation after an online tool for employment status had been developed.
Why is status important?
Status determines a number of separate rights, with employees having the most rights – including the right to claim unfair dismissal – and the genuinely self-employed having the least. Many of the claims over worker status have focussed on the right to paid holiday – a right that workers and employees have, but the self-employed do not.
Cases this year
The issue of status has remained in the headlines this year:
- Mr Smith’s claim against Pimlico Plumbers returned to the Employment Tribunal after his success in the Supreme Court in respect of status. Despite being found by the Supreme Court to be a worker, Mr Smith was unsuccessful in his claim for £74,000 in holiday pay, his claim having been found to have been presented out of time. He indicated at the time that he wished to appeal this decision.
- Uber also confirmed that it wished to appeal the Court of Appeal’s decision in Uber BV and others v Aslam and others and permission to appeal to the Supreme Court was granted. A hearing date is awaited.
- In September, the Watford Employment Tribunal referred a number of questions to the CJEU concerning the employment status of Yodel couriers, including whether the right to provide a substitute is fatal to the definition of worker status.
However, it is not just couriers and drivers who are affected; status has continued to be challenged in other areas:
- In Varnish v British Cycling, a former Great Britain cyclist is appealing an Employment Tribunal finding that she was neither a worker nor an employee of British Cycling and UK Sport. A hearing date is awaited.
- The EAT in Scotland is due to hear an appeal this month about the employment status of specialist foster carers in Johnstone v Glasgow City Council.
- In a separate ECJ ruling in December 2018, (Sindicatul Familia Constanța and others v Direcția Generală de Asistență Socială şi Protecția Copilului Constanța), foster parents were held not to be workers. An Employment Tribunal in Flisher v Kent County Council was due to consider the issue of status in September 2018 but the decision was referred back to the Judge and has not yet been published; a separate tribunal in Anderson v Hampshire City Council is also due to consider the issue but a hearing date is awaited.
- 27 ‘freelance’ art educators working for the National Gallery have been held by a tribunal this year to be workers (Braine and others v The National Gallery).
- The EAT in Community Based Care Health Limited v Narayan has also upheld a decision that a GP registered with CBCH, a company providing out-of-hours services to the NHS, was a worker.
As is evident from the cases above, we are awaiting status decisions and appeals covering a number of different sectors and so this area of law is still in a state of flux.
There will also be an additional focus on status as we move into next year, at least as far as taxation is concerned. Under draft legislation, from April 2020, medium and large private sector organisations will become responsible for checking whether contractors need to pay income tax and national insurance contributions, shifting the responsibility from the contractor to the organisation using the service. This mirrors the changes made within the public sector in 2017. Further guidance on status tests, particularly if, as indicated in the Good Work Plan, the tests for tax and employment purposes are to become fully aligned, is therefore awaited.
If you do have a flexible workforce, and would like to discuss any issues relating to status, please let us know.
+44 (0)115 976 6033
You may be interested in...
Employment claims: the new rates and limits from 6 April 2023
Plans to amend NHS pension rules to bolster NHS workforce approved by government
Increase to 20 hour limit on supplementary employment for Health and Care Worker visa holders
New report highlights risk of sidelining ED&I in school trusts
Mopping up after a leak – how businesses can take steps to protect their confidential information
Wellbeing and financial considerations – practical solutions for challenging times
Browne Jacobson collaborates with The GLAA and University of Nottingham to tackle modern slavery and human trafficking
Teacher strikes – lessons learnt so far
Can toilet facilities amount to sex discrimination?
Consultation launched on minimum ambulance service levels during strike action
Opinion - Maternity services
Changes to redundancy protections for employees post-maternity leave
BMA issues medical locum rate card for junior doctors
Employee who refused to wear a face mask fairly dismissed
New toolkit to support safer recruitment in the care sector
Employment update webinar
Term-time school worker entitled to national minimum wage for unworked basic hours
Fire and re-hire – draft statutory code
Menopause and the workplace
Consultation on holiday entitlement – part-year and irregular workers
Government introduces new “anti-striking laws” to be discussed in Parliament
Twitter facing employment claims following mass redundanciesNews that Twitter is being threatened with multiple claims by UK employees following mass redundancies provides a reminder of the risks that comes with an employer implementing large scale redundancy exercises.
Industrial Action and Minimum Service Levels
Discrimination comes of age
Legal Update - Shared Insights
Shared Insights: Looking ahead to 2023 – what Health and Care employers need to know
Rising Employment Tribunal backlog
Official statistics demonstrate a new wave of age discrimination claims
Menopause and the NHS workforce addressing the female brain drain…
4-day working week a success?The Covid-19 pandemic drastically changed the world’s way of working, with increased flexibility being greatly desired by employees. Earlier on in the year, a number of organisations trialled the concept of a 4-day working week – which has clearly been a success for many.
Coming of age
Official statistics show that 15,336 claims which included a complaint of age discrimination were received at the Employment Tribunals between March 2020 and March 2021.
Starling Bank employment tribunal
The outcome of the Employment Tribunal claim brought by Gulnaz Raja against Starling Bank Limited (1) (Starling), and Matthew Newman (2) was reported last month.
EU banks show slow progress on gender diversity
Rising wages ahead
In the Autumn Statement delivered on 17 November, rises to the National Living Wage and National Minimum Wage rates were announced, to take effect from 1 April 2023.
World Cup 2022 – how employers can avoid scoring an own goal!
The World Cup kicks off in Qatar on Sunday 20 November 2022, with the final taking place on Sunday 18 December 2022. Undoubtedly, this is a huge sporting event, and many employees will be keen to show their support for their favourite teams. However, due to the time difference, start times for the matches are between 10 a.m. and 7 p.m. UK time, which could have an impact on employers if employees who wish to watch the matches are scheduled to work.
Settlement agreements – what are the limitations?
Settlement agreements are commonplace in an employment context and are ordinarily used to provide the parties to the agreement with certainty following the conclusion of an employment relationship.
The Starling Bank disability discrimination decision
The vanishing dismissal
Where an employee appeals against their dismissal under a contractual appeal procedure and their appeal is successful, reinstatement to their previous role is automatic and does not require approval or agreement from the employee.
Settlement agreements – what are the limitations post Bathgate?
Settlement agreements in an employment context are ordinarily used to provide both parties with certainty following the conclusion of an employment relationship – but what happens when there is alleged discrimination after entering into a settlement agreement?
IR35 rules here to stay after government U-turn
A few weeks ago we brought you news that following the Government’s mini-budget it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 would be scrapped from April 2023.
Redundancy consultation and selection concerning expiry of a fixed term contract – EAT put the spotlight onto a ‘selection pool of one’
In Mogane v Bradford Teaching Hospitals NHS Foundation Trust the Employment Appeal Tribunal (EAT) considered whether it was fair to dismiss a nurse as redundant on the basis that that her fixed-term contract was due to expire before that of her colleague.
Lying on your CV – what can possibly go wrong?
The majority of people do not feel the need to embellish their CV to get that coveted position and move on up the career ladder. Their worthiness and benefit to the hiring organisation are easily demonstrated through the recruitment process – application, psychometric testing, selection day or interview.