It’s Uber Day!

Today the Supreme Court released its judgment in the case of Uber -v- Aslam.

What is it?

This case deals with the employment status of private hire vehicle drivers who provide their services through the Uber app. It was brought to the Employment Tribunal by Mr Aslam and Mr Farrar as a test case to establish their employment status.

Why do we care?

Employment status is complicated, but in a nutshell, if Uber drivers were found to be ‘workers’ and not self employed, it means they are entitled to:

  • Minimum wage for the entire time they are logged on to the app, not just when driving
  • The right to be paid for annual leave, which is calculated based on the number of hours they are logged on

So, if you have a driver logged on for 8 hours a day but they only pick up 2 rides….they get minimum wage for the whole day AND start to build up holiday.

There are 45,000 Uber drivers, just in the UK…..that’s a lot of money that is potentially owed!

So what, I’m nothing to do with Uber?

It isn’t just Uber, it now gives the likes of Hermes drivers, Deliveroo, JustEat etc…a similar case.

If you engage freelancers it may be that they equally have a case, you should have your arrangements reviewed urgently. The back pay you could be liable for goes back 2 years.

The Law (how has this happened)

The main question was whether the drivers were classed as ‘workers’ under employment law. If they were classed as workers, this would provide them with the benefit of certain rights. These rights include the right to be paid the national minimum wage and the right to receive paid annual leave, amongst other things. The Supreme Court had to also consider, in the event Uber drivers were classed as workers, what time counts as working time for the purpose of the relevant rights.

Under the relevant legislation, the definition of a worker includes anyone employed under a contract of employment but will also extend to certain self-employed people. In particular, the definition includes an individual who works under a contract “whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual”.

The Employment tribunal found that Both Mr Aslam and Mr Farrar satisfied the definition of workers. Uber appealed the Judgment.

Both the Employment Appeal Tribunal and then the Court of Appeal dismissed Uber’s appeals. The Supreme Court has now unanimously dismissed Uber’s appeal.

The court also found that Uber drivers are workers from the moment they switch on the app and are available for work until they switch off the app.

It means that the drivers are entitled to claim minimum wage and they can also claim backpay for this. Any claims would be based upon the driver’s whole working day, as per the description above.  This backpay could be claimed in the employment tribunal and £25,000 or up to 2 years back pay could be awarded.

Alternatively, drivers may wish to make a claim in the county court where it is possible to claim up to 6 years backpay.

This Judgement will have vast implications, not just for Uber and their drivers, but also for other companies who have been functioning in a similar way.

If you work for Uber or think this judgment might affect you, please get in touch and we will be happy to discuss this with you.

Blog by Jaimie Whiteley, Employment Law solicitor at Gamlins Law

‘No Jab, no Job’ Can an employer force its employees to get the COVID-19 vaccine?

You may have seen in the news the articles about Pimlico Plumbers announcing a new ‘no jab, no job’ policy. The company has said that this new policy will involve new contracts which include a vaccination requirement. But can an employer force an employee to have a vaccine?

Whilst an employer cannot physically stab you in the arm with a vaccine (this would be a criminal offence!) it could be argued that an employer requiring an employee to have a vaccine would be reasonable.

Of course, any employer deciding to insist on requiring their employees to have a vaccine should take legal advice because there is a significant risk that claims could be made against the employer, especially if employees who refuse will then face disciplinary action or dismissal as a result.

Employers must ensure that employees are safe in the workplace. They may say that the refusal to follow their request to get the vaccine could be a failure to follow reasonable management instructions. This would be particularly relevant where employees were not able to work from home or socially distance in their work environment. If the employee was, for example, a healthcare worker or someone who worked with vulnerable people the argument that the vaccine was required would be stronger again. If, however, the employee could and was able to work from home having little to no contact with other employees or clients, the argument for a mandatory vaccine being reasonable would be much weaker. As you can see, this would need to be dealt with on a case-by-case basis and the reasons for refusal would need to be carefully investigated.

An employer may decide to take the position that if an employee refuses to get the vaccine then they will dismiss them. There is nothing to stop a dismissal from taking place but an employee, who has been employed for more than 2 years, may then be able to bring a claim for unfair dismissal. The employee could argue that the dismissal was unfair and unreasonable because unless it is a term of an employees contract, employers can only request that the employee gets the vaccine and a policy that says ‘vaccine or dismissal’, would effectively be forcing the employee to have the vaccine. Employees may also say it is unfair because their employer has not looked at any alternatives for them, such as a different role or working from home. They could further argue that such a policy would breach their rights under Article 8 of the Human Rights Act 1998.

Employers might also have to deal with situations where employees are refusing the vaccine for legitimate reasons such as pregnancy or disability. If the employer dismissed someone in this situation then the employee could be able to bring a claim for discrimination under the Equality Act 2010. It is important to note that being worried or hesitant about having the vaccine would not be a protected characteristic.

There is nothing stopping employers from encouraging their employees to get vaccinated. This could be in the form of encouraging their employees to get the vaccine when offered it by the NHS or by offering to pay for their employees to get the vaccine privately, though this is not anticipated to be something that will be available in the UK to allow free and fair access to the vaccine.

If employers do want to require their employees to have vaccines, they should consider this on a case-by-case basis. It is also not as easy as simply writing a vaccine clause into all new employee’s contracts, blanket vaccination policies could be indirectly discriminatory if they cannot be justified. There will be different circumstances to take into account for each employee and employers will need ensure they have looked at all the alternative options for their employees prior to dismissing them or refusing to hire them.

Jaimie Whiteley- Employment Solicitor- Gamlins Law Ltd
Jaimie.whiteley@gamlins.co.uk
01745343500

Coronavirus Catch-22

Coronavirus Catch-22 – As employers face the very real prospect of having to make decisions on preserving productivity and face the impact of significant employee absence, we consider the impact of coronavirus on UK employers.

Whilst the threat that coronavirus may become a pandemic takes precedence in the global news headlines, stories have started creeping into the press showing major employers closing their offices and sending staff home. Some schools have also taken the decision to send pupils home, including those attended by Prince George and Princess Charlotte.

This outbreak, the media inducing panic and continuing spread have the potential for serious implications for businesses, particularly those with globe-trotting employees or those relying on foreign supply chains, China being a significant supplier of UK industries.

Chevron, Crossrail and OMD have been reported as sending staff home. JCB are reported to be reducing employees working hours and suspending overtime.

Impact on Business

Employees coming back from affected areas may be quarantined for up to 14 days. In such circumstances whilst an employee may well be ‘fit for work’ potentially showing little to no symptoms, clearly a compulsory quarantine is something out of their control.

Technically an employer may not have to pay an employee that doesn’t present for work and doesn’t provide a sick note. Whether quarantine centres are providing fit notes is not confirmed.

However, our advice at this time would be to at the very least pay SSP to employees who have been quarantined. Failure to do so in the circumstances could be a breach of trust and confidence and land you with a constructive dismissal claim.

If an employee has not been quarantined but is showing symptoms and presents for work, if you as an employer are concerned about coronavirus and its spread, in the absence of a fit note to state otherwise your options are limited in respect of what you can do with your employee.

Medical suspension, pending occupational health review would likely be the lowest risk option, the employee being entitled to full pay and you can be satisfied with the occupational health review that you can get some clarity on their medical situation.

If your supply chains are suffering or the global issues are impacting your ability to produce/trade, lay off or even temporary closure may become a reality for a period. Employers should check contracts to ensure that they have the contractual ability to lay off and check whether there is a contractual entitlement to pay.

Consider contacting customers to discuss the issue and seek agreement to amend timescales for delivery of items or projects, to relieve the pressure on your business should you be in the position where you are having to send employees home or are struggling with supply chain

In the absence of a lay off clause, staff will need to be paid as normal to avoid breach of contract claims.

If your organisation doesn’t have lay off clauses, you should consider consultation with your workforce to agree temporary changes to mitigate the impact to the business and safeguard jobs in the long term.

Consider other flexible working options such as working from home as other means of mitigating the impact of lay off.

Employer Duties

As an employer you have a duty of care to your employees. If work trips abroad put employees at the risk of infection you need to consider a risk assessment and whether the trip can be justified (bearing in mind that an employee could be quarantined on their return).

Video conferencing facilities may mitigate the impact of this, and given the global nature of the virus, businesses around the world are likely to be accommodating in this respect.

Staff should be fully informed on infection control, reminded of basic hygiene regarding washing their hands with hot water and soap and encouraged to use tissues and sanitizers. Ensure the workplace is regularly cleaned and any flu like symptoms are addressed immediately.

Given there is significant government guidance in relation to the virus you should ensure that your business is not encouraging employees to act contrary to current advice.

Consider the strategies you need in place to manage your suppliers, production line and customers and mitigate those impacts where you can. Whilst paying an employee to stay away from the workplace may seem like a painful step, allowing them to come in and infect the rest of your workforce could have catastrophic effects.

Whilst an employer may face difficulties both financially and administratively during this bewildering time, employees’ health and well-being is paramount. It will be necessary to strike the balance between providing a safe working environment, protecting health and wellbeing and ensuring operations and businesses continue to run smoothly.

It is imperative that employers have robust employment contracts and the necessary procedures and policies in place which will facilitate the smooth running of the business and diminish any risk of a potential breach of contract or unfair dismissal claim.

If you require advice on any of the issues raised above or would like assistance in drafting or amending your employment contracts, policies and procedures, call our team on 01745 357369

For urgent assistance email elissa.thursfield@hranchor.co.uk

 

For up to date guidance on Covid 19 visit gov.uk here 

If you require any assistance or have questions about how to deal with Covid 19 as a business contact us for a no obligation consultation

Megxit, Brexit and Difficult Exits

By all accounts Europe took it rather personally following the referendum Brexit result. Megxit (if you believe the tabloids) has upset the apple cart even further.

With Downing Street and Buckingham Palace having their hands full with difficult exit talks, it provides those of us trying to simply navigate our own businesses with the reassurance that even those at the top of the food chain and with the world’s best advisers at their disposal, exit talks can be a struggle.

Whether you are a Fortune 500 company, or a small business with just 1 employee, difficult exits come down to the same fundamental principle, an awkward conversation to end an awkward situation and hope everyone ends up not too bruised at the end.

As Brits, we are often terrible at handling awkward situations. We are, however, very good at being awkward. Ever hidden from your neighbour in the supermarket? Decided to not ask someone to repeat themselves a third time and live forever in ignorance as a preference? Looking at the phone while it rings with an unrecognised number, and then wondering who it was?

It is part of being wonderfully British that makes us exceptional at small talk while queuing and managing awkward social situations.

However, when it comes to an awkward or difficult situation at work often we are prepared to let something fester rather than address it head on. Stiff upper lip and all that.

The Queen demonstrated fantastically last week the concept of ‘grasping the nettle’ with a true Britishness of ‘let’s just get it done’ in time for a cup of tea. Hoorah.

So, how should we deal with difficult exits at work? The key is often to understand not necessarily what everyone wants, but what can be achieved for everyone involved so they feel they have had a ‘win’.

That they might not have got everything they want, but they feel their pride is intact and they can walk away feeling like they have had some control over the situation.

Effective HR input, backed by solid legal advice, is essential to ensure that matters stay on track. Where personal relationships have got in the way at work, outsourced HR can help instil trust and prevent discussions from going round in circles.

By Elissa Thursfield, Director of HR Anchor

You can’t buy happiness

Employee engagement can be a prickly issue for employers. Happy staff can increase productivity and they are more likely to have ‘buy in’ for your business, often resulting in happier and more engaged customers.

So how do you get happy staff? Ask your staff this question and invariably the results are:

  • Pay me more money
  • Give me more holidays
  • I’d like more ‘perks’

Essentially put the question to your employees and they will confidently inform you their happiness at work is a commodity for sale.

Undoubtedly a pay rise letter or the introduction of perk will produce an endorphin effect and you may be more likely to see cheerful staff skipping down your hallways, however will it last?

The blunt answer is generally a resounding no. The effect of the increase/the perk wears off, and employees become accustomed to the new status quo, before you know it is annual review time again and the cycle commences again.

What is an employer to do? Invest in happiness in monetary terms and you may see a return on this investment in the short run. However having to constantly feed such an investment can ultimately have a negative impact on your business. At some point you will have to say ‘no’ and moral plummets.

You don’t need to be a sparkly city company, able to provide a subsidised restaurant, gym, or sleeping quarters for your staff. Nor do you need to spend the GDP of a small country on Christmas parties, perks or ‘teambuilding’ away weekend. They are just that, perks. They don’t keep employees engaged in the long term, or prevent them from looking for greener grass.

Employee engagement runs deeper and should look at employee integration, working environment, team structures, trust, fairness, progression and the feeling of being valued. A well engaged employee who feels that their contribution has value to the business, and that value is recognised is likely to be significantly happier in the workplace and bought into your product. Your goals (employer and employee) start to become common goals, rather than a focus on the bottom line of the payslip, resulting in a more productive work environment.

Employee engagement can increase productivity, profitability, reduce absenteeism and staff turnover. Can your business afford to not get it right?

Contact:
Elissa Thursfield: HR Anchor Ltd
Elissa.thursfield@hranchor.co.uk
01745357369