Solving the riddle – Uber, Addison Lee, workers, employees and the self-employed

Confusing road sign The media has been awash with stories about ‘worker’ status recently. The most obvious being the recent Employment Tribunal decision that Addison Lee drivers are workers, not self-employed as the private hire taxi firm argued, and the similar decision against Uber a few months ago. The appeal for the Uber case was heard last week in the Employment Appeal Tribunal, albeit the decision will probably be announced in December.

So then, you may conclude, all taxi drivers are workers? No. Okay, so most of them are self-employed? No. Well, they must be full employees then? Not really.

To get into this, we should acknowledge one thing. The definition of “worker” in the Employment Rights Act 1996 is purposefully fuzzy. No, that’s not legal jargon, but an acknowledgement that the status is meant to catch those people who fall between the more obvious categories of employee and self-employed. Stereotypically-speaking, employees are those who work in an office on a rolling contract for a specified number of hours per week and self-employed individuals work for their own business and are ‘their own boss’. Now, in practice, it isn’t that simple, but let’s use those examples as vague signposts for now because, otherwise, I’ll need to name enough qualifications and exceptions to fill an employment textbook chapter!

So, ‘worker’ status is designed for those who aren’t ‘full’ employees or self-employed. But where is the line? Where does a ‘worker’ merge into an employee and when does a ‘worker’ get so far as to be effectively self-employed?

These are very good questions. In fact, they are such good questions that a lot of employers, including Uber, Addison Lee and Deliveroo, end up finding out at Employment Tribunal precisely because it is hard to specify otherwise.

Details

When can social media posts be used as evidence? – A Snoopy character study

Charlie BrownSocial media. Oh my. We all know the usual story of an employee getting ‘caught out’ by a social media post. But, in reality, social media is a complicated beast and never quite as straightforward as it appears. Can an employer normally rely on social media posts? Probably. Can it always rely on incriminating social media posts? No!

Before we get into it fully, it’s important to consider that even defining ‘social media’ is tricky nowadays. Raise your hands if you think you’re pretty au faux with social media websites? Good, good. So you’ve heard of all of the following: Facebook, WhatsApp, Tumblr, LINE, Telegram, Foursquare and Snapfish. I thought not… (Bonus point if you actually did!)

Now, we all know the standard tale. An employee posts something anti-employer on their social media or posts something that proves dishonest conduct and the employer then pulls out their social media policy, invites the employee to a Disciplinary hearing and a formal sanction (up to and including dismissal) is given. But, in reality, a lot depends on how that information comes to light. 

Details

Handling Honeymoons

Moose sign Full disclaimer: I’m off on honeymoon soon. I plan to spend 3 weeks driving around Canada and, in my head at least, spotting many moose and bears and eating my body weight in maple syrup and pancakes! But, fear not Canter Levin & Berg, this article isn’t published as a hint to you but, rather, because I get a lot of questions from employees and employers alike about ‘honeymoon etiquette’!

Now, honeymoons are a curious beast. Firstly, because it tends to be one of the few occasions where an employee is allowed more than two consecutive weeks of annual leave and, secondly, because it remains a symbolic event in which a newly married couple are seen to go away and focus on each other which, naturally, doesn’t really interlink with the concept of working.

Details

Can an employee be dismissed for supporting a certain sports team?

 A few weeks ago, I went to the Belgium Grand Prix. Lewis Hamilton and Sebastian Vettel had a race-long battle which, for the most part, revealed a fairly even mix of Ferrari and Mercedes fans in the crowd. Hamilton won and was cheered onto the podium. At the next Grand Prix, in Italy, Hamilton won again. This time he was booed on the podium due to the vast number of Ferrari fans at the event. And, this last weekend, at the Singapore Grand Prix, the Ferrari cars were lambasted for crashing into each other and Hamilton took another (cheered) victory.

Why am I telling you this? Well, depending on which race you went to, your status as a Ferrari or Mercedes F1 fan would get a different reception and, weirdly, this can be the same with different workplaces.

Football is the obvious starting point here. If I worked in Manchester and declared myself to be a Liverpool FC fan on the first day by walking into the office with a Liverpool FC scarf, I’d be unlikely to make friendly quickly. In comparison, I’d most likely get a warmer reception if I did so in our Canter Levin & Berg office in the city centre (albeit there is a sizeable Everton-supporting community here too!)

But, surely, even if that is the case, the title of this blog is a daft question? In this age of publicised Employment Tribunal claims and employment law protection, surely an employer can’t take the ultimate act of dismissing someone just because they support a certain football team or Formula One team?

Details

US firm starts microchipping employees – Science fiction or the future?

Microchip reader Yes, you read that correctly. Microchipping employees. And, no, that’s a real headline. A technology company in the USA has been widely reported as microchipping employees in place of their security and identity cards.

The first thing to get out of the way here is that they aren’t implanting an actual, square computer chip. Rather, they insert a tiny implant (the same size as a grain of rice) between an employee’s thumb and forefinger with a syringe. Apparently, removing it is akin to taking out a splinter (ouch?)

Now, apparently, the ‘younger generation’ are most likely to get onboard with this in the future. Well, I’m in my twenties and I’m not tempted in the slightest. Saying that, I hate needles, so that’s a poor starting point…

Looking at the wider picture, we live in a world of fingerprint ID on phones and being able to unlock the latest phone handsets with your own face. So why is an implant so controversial?

Details

Does the recent European Court of Human Rights decision actually ban employee email monitoring?

You’ve probably seen the recent headlines: ‘Employer breached employee’s human right to privacy by reading workplace emails’, ‘Employers can’t place employee communications under surveillance due to human rights’, et cetera, et cetera.

The thing is, broadly speaking and barring one key exception, those headlines are wrong.  Why?  Firstly, because the facts of the case were unusual and, secondly, because the employer failed to do something which, nowadays, is standard practice and commonplace.

Let’s look into these two points briefly.

Details

Can employees tracking Transfer Deadline Day today be given the red card?

Referee Red CardToday is Transfer Deadline Day. For non-football fans, that phrase will either illicit groans or simple ignorance. However, for football fans, that phrase conjures up images of Harry Redknapp being interviewed leaning out of a car window, Peter Odemwingie turning up to random football stadiums without consent and Liverpool offloading Fernando Torres for £50m and instantly replacing him with Andy Carroll!

As the name suggests, Transfer Deadline Day is the final day on which Football League clubs can buy and sell players (albeit Spain’s transfer window remains open until Friday night – which will be nervewracking for Coutinho fans!) Unfortunately, due to the date being fixed as 31st August each year, it tends to fall on a weekday. Many employers, therefore, will be spotting employees quickly closing down internet pages packed with rumours about where Mahrez is off to and whether Coutinho will finally be sold for goodness knows how much…

But what stance should an employer take? To use a referee analogy: should you let it go, have a quiet word or produce a yellow or red card?

Details

123 days to go: Is it time to start thinking about Christmas?

Brussels Christmas MarketI love Christmas! Absolutely, utterly love it. As my friends and family will tell you, I’m the guy with the Christmas countdown app on my iPhone, the colleague who hangs obscene amounts of tinsel and Christmas paraphernalia around my desk and, every year in September, start googling Christmas Market trips in Europe (last year was Brussels, which is highly recommended!)

Surprisingly, however, it isn’t the quirky number of 123 days to go which has prompted this blog. Rather, it was a recent news article on the BBC News website entitled “Forget summer, it’s time to preare for Christmas” – a link can be found here. The article is mostly about employers preparing their product range for Christmas but, from an employment law perspective, it made me think about the ways in which businesses also need to manage personnel and policies to ensure an effective, stress-free Christmas period.

I’d be missing a clear open goal if I didn’t use Santa as my example employer here. So, here we go, let’s get some pre-planning in place to get Santa ready for Christmas!

Details

Does Brexit mean the end of European Court of Justice (ECJ) jurisdiction and why does it matter?

Brexit signLet’s start with a little confession: that title is a bit tricksy. Why? Because the second part of it is completely hypothetical. The judgments and decisions of the European Court of Justice (ECJ) affect every employer and employee in the United Kingdom. This is not solely due to decisions affecting the interpretation of current UK Employment Law (such as workplace discrimination laws and working time regulations) but also through decisions affecting current and future business arrangements and/or impacting upon the UK economy. If the UK are truly to ‘take control of their laws’ (a constant Conservative buzzphrase), the logic is that the UK can’t be subject to the decisions of an EU court which changes the meaning of our laws.

However, there is another big question at stake here which is, after the terms of Brexit are agreed, who makes the decision as to which side is correct (UK or EU) if there is any future argument over incorrect application and/or breaking of Brexit terms.

By way of disclosure, I’m not going to state my personal views on whether Brexit is right or wrong here. What is clear is that the country has democratically voted to leave and the issue now is negotiating a reasonable exit on logical terms. On this front, I must admit, the current Conservative strategy of aggressive anti-EU comments, infighting and unreasonable and unrealistic bargaining positions has been disappointing.

On 23 August, the Government published their proposals for the future legal relationship between the UK and EU. Their paper is called “Enforcement and dispute resolution: A Future Partnership Paper” and can be found here. I don’t recommend it as bedtime reading – it’s dry, dull and extremely vague. However, some sections stand out and point to potential future effects on UK employers.

Details

Why dismissal for minor, non-malicious social media posts can constitute unfair dismissal

Facebook thumbs downEmployment Law cases can relate to all manner of things: sexist make-up policies, discriminatory Secret Santa gifts and, in the case of one Canadian law suit, a claim by employees for ‘psychological torture’ due to the employer playing Christmas songs on loop from November onwards.

I’ve recently read a case worthy of joining this list – namely, the ‘Facebook meat advertisement’ case. This is the case of Hayward v Noel Chadwick Limited heard in Liverpool Employment Tribunal, which published its judgment in March 2017.

As some readers in the Wigan area may know, Noel Chadwick Limited (“NCL”) is a typical local butcher shop which heavily relies on local reputation and footfall in the Standish area. The only real ‘online service’ provided is an email service requesting local deliveries.

In this case, Mr Hayward sent a public Facebook message to his then-girlfriend about the cost of packages of meat from an online meat company. The company wasn’t a competitor and operated in a different manner (i.e. online-only and a wholly different types of product). Put plainly, the only similarity was that they sold meat (in the same way that Dacia and Ferrari are similar because they sell cars, for example – it is the same product but very different ends of the market wihtout being ‘true’ competitors competing for the same customers).

Unfortunately, the Directors of NCL considered the post to be an “advertisement”. They also argued that they thought the post was made in bad faith and was “malicious”. So what did the Employment Tribunal decide?

Details