Worker Status Confirmed for Uber Drivers

Uber’s appeal against a landmark tribunal ruling in 2016 has been unsuccessful following a judgment handed down in the Court of Appeal yesterday.

Uber drivers shall continue to be classified as workers, directly employed by the company, and will be in receipt of all the employment law protections that this affords.

The appeal was lodged by Uber to
overturn a 2016 Tribunal ruling that the hire-on-demand driver service should
treat its drivers as workers not as self-employed as argued by the firm. The
original decision was upheld after the judges reached a 2 -1 majority decision –
finding in favour of the workers.

Uber’s contention was that its
drivers should be treated as self-employed, in a similar way to that in which taxi
drivers and other private-hire vehicles are. In Britain, the self-employed are
not able to access basic employment-law protections such as for example the
right to a minimum wage, paid holidays, sick pay and rest breaks.

The above benefits carry
significant costs, which Uber’s business model has attempted to circumvent by
misclassifying drivers as self-employed when in reality, on the facts and as
re-confirmed by yesterday’s judgment they are workers. Uber has however
introduced a number of benefits to its drivers this year (for example pairing
up with insurance giant AXA to provide partner protection insurance for its
European drivers in the event of injury, sickness and family leave) and its position
is that the drivers enjoy the flexibility that the role offers, and that on
average its drivers earn much more than the minimum wage.

So why have the drivers been classified as workers?

Details

“Pale, stale, male” advertising executives claim that they are victims of discrimination

Think of the TV series Mad Men and you will conjure up the image of high-flying testosterone filled salesmen living up to almost every imaginable stereotype of a world that was and to some extent still is. However, the world is definitely changing, no more so than in 2018, with the burgeoning #MeToo movement, and a sense that radical action is needed to achieve real equality in the workplace. However, and stick with me on this one, is there a tipping point beyond which targeting and redress can be taken too far?

J Walter Thompson (now generally referred to as JWT) is an enormous global advertising agency and widely thought to be the inspiration for Mad Men. News has emerged over the last few weeks of something of a putsch against what might be regarded, to coin a phrase, as its pale, stale, male employees.

As reported in The Times (behind the paywall), the groundwork for what was coming could be detected when JWT’s creative director, Jo Wallace (introducing herself as a gay woman), spoke at a diversity conference in May about her determination to “obliterate” its reputation as and agency full of white, privileged, straight, British men. She pledged to address a “horrible” median gender pay gap of 44.7%, saying that the disparity in pay put: 

…a rocket up the arse of all the diversity plans at JWT

Jo Wallace, creative director, JWT

Unsurprisingly, some of those who appeared to be in Ms Wallace’s firing line were concerned about their futures at JWT in light of what had been said. The approached the agency’s HR department and, according to a report in Campaign magazine, were sacked days later. Having taken legal advice, they are now reported to be bringing discrimination claims based on gender, race, nationality and sexuality. How is that possible, you might ask?

Details

New workplace reforms announced – take note of the requirements

At long last the Government has announced its response to the Matthew Taylor report on modern working practices, published in July 2017. Mr Taylor is a former aide to Tony Blair and is currently the chief executive of the Royal Society of Arts. He was charged by the previous Conservative government with reviewing employment law practices, with a particular emphasis on the emergence of the “gig economy”, characterised by zero hours contracts. The Government’s response and recommendations in the “Good Work Plan“, a 62 page detailed response which, commendably, lists all 53 recommendations in the Taylor Report and provides itemised responses

According to the BBC, significant changes will take effect from Monday 24 December, including an entitlement to a written statement for all workers (not just employees) of terms and conditions from the first day of a person commencing work (currently within two months). However, I am not sure that this is correct since secondary legislation will be required and, given the Government’s busy schedule, I can’t see it being fitted in in the near future. However, it makes sense to prepare for the changes and change procedures, where necessary to do so, as soon as possible.

It is no surprise that zero hours contracts have not been banned. When being interviewed on BBC Radio 4 earlier this week Mr Taylor cited the example of the trial run by McDonalds (referred to in my earlier blog posts on the topic) in which employees were offered the choice of fixed hours or zero hours contracts. Only 20% took the fixed hours option, thereby demonstrating that zero hours contracts do work for some people.

Among other notable accepted proposals, as matters stand, a break in service of one week does not affect the calculation of the qualifying period for continuous service. In future, breaks of up to four weeks will be disregarded.

Additional information in the form of a Key Facts Page will be provided to all agency workers at the start of each contract, setting out their contractual and employment rights, so that they are clearly understood from the outset.

Significantly, written statements of terms of employment (to be issued to both employees and workers from day one). Additional information required to be provided includes:

Details

Mourinho sacked: Liverpool FC turn Jose’s Christmas blue

So, the seemingly inevitable has happened.  Jose Mourinho has, after weeks of speculation, been sacked by Manchester United. The writing was largely on the wall, of course, given Jose’s continuing propensity to flick between extreme defensiveness and pettiness during press conferences, his verbal attacks on his players and the side’s consistently poor performances under his stewardship.

However, before the Liverpool FC game, the accepted wisdom was that Jose would see the season out (Louis Van Gaal-style) and then be dismissed at the end of the season. Naturally, given that Manchester United were so overwhelmingly outperformed in the derby game last weekend, it is perhaps not too surprising that the Manchester United board saw the need to take more immediate action.

Obviously, the situation with football manager contracts are usually different to ‘normal’ Contracts of Employment by way of being fixed-term (i.e. for a number of months or years) rather than rolling continuously until notice is given.  In this way, there will be the need for negotiations to end Jose’s Contract but, these things aside, he is immediately removed from his position as Manager.

For the purposes of this blog, let’s treat Jose as being in a ‘normal’ employee situation and see whether he would have fared any better.  So, hypothetically speaking, let’s say that Jose was a Production Manager in a warehouse for a company called Trafford Trailblazers and that the company produced various industrial items and delivered them to customers and let’s now consider what his recent actions would have meant within that more ‘regular’ role.

Details

The Santa Clause – Employment Law Troubles in Lapland

Yes, Christmas is nearly here and, as with most years, Santa Claus is at the centre of shop displays and advertisements.

However, in recent years, Santa has faced a lot of competition, mostly from online retailers.  This is a natural consequence of Santa not having an online presence but, obviously, Santa remains reliant on Christmas spirit, rather than finances, to run his operation.

Unfortunately, this doesn’t prevent Santa from having employment law-related issues in Lapland and, as per usual, he needs a bit of advice to ensure that Christmas isn’t cancelled!  So, let’s snowand help Santa (sorry)!

The first issue this year is, weirdly, related to the General Data Protection Regulation 2018 (GDPR).  You see, both the reindeer and elves are paid in mince pies and, of late, there has been some friction due to the elves getting wind that the reindeer may receive more mince pies than them!  In particular, the elves fear that Rudolph receives double their allowance for the supposed reason of ‘needing them to keep his nose red and bright’!  Santa is very concerned that the elves, who are very technologically savvy (particularly as they build the latest computers and games consoles), may try and access the electronic files containing the reindeer mince pie allocations and, obviously, if that happens, he will have a data protection breach under the GDPR.  What should Santa do?

Details

What shall we do about NDAs?

Sir Philip Green

Non-disclosure agreements are nothing new. They were initially used in commercial transactions in order to protect parties in negotiations from the disclosure of commercially sensitive information. It remains the case that businesses which are considering mergers or acquisitions will normally start the process by requiring the interested parties to sign an agreement that is intended to ensure that, in the event that discussions do not lead to fruition, details of the parties, such as their business plans, forecasts and any other confidential arrangements, are not at risk of being leaked. This makes perfect sense, not least from the point of view of data protection.

Their use has become more widespread and they have moved into the sphere of employment law. It is more or less standard for settlement agreements (on the termination of employment) to include clauses which provide that the parties will keep confidential the terms of settlement and the circumstances giving rise to it. In most cases, this suits both parties. In effect, the employee is agreeing a trade off with the employer that, in return for a pay off which avoids the need for protracted, expensive and uncertain legal proceedings, they will accept an enhanced payment on terms which, to borrow a term from divorce law, provides for a clean break.

However, you can’t have missed the furore that has brought such agreements into the news headlines, particularly in the case of retail supremo Sir Philip Green and media mogul Harvey Weinstein. The #MeToo movement has led to a lively public debate about the inequality of arms which tends to accompany such deals and their ability to conceal serious wrongdoing including illegal activities, particularly discriminatory behaviour and, in the more severe cases, the sexual assault of women.

Details

Was Ryanair’s dismissal of staff a bumpy landing?

It’s fair to say that Ryanair aren’t strangers to controversy.  Whether it be their pricing strategy, public statements or otherwise, they seem to attract publicity for many reasons, whether good or bad.

Given their nature for publicity, it was perhaps predictable that the media (and social media) would seemingly target Ryanair for dismissing six staff members photographed sleeping on the floor of a crewroom in a Spanish airport.  Indeed, on the face of it, it seems bizarre to punish staff who were ‘forced’ to sleep on the floor.

However, as with most situations, there is more to the story than the headline would suggest and, dig a bit deeper, and it seems that Ryanair may actually have had legal grounds for dismissing the six staff members for Gross Misconduct based on the publicised facts.

Now, as a starting point, naturally, you can’t dismiss staff for sleeping on a floor.  That would be ludicrous and completely unfair.  But, in this case, that isn’t why Ryanair dismissed their staff members.

So, why did Ryanair sack them?  What’s the big difference?  Well, put simply, Ryanair believe that the staff members ‘staged’ the photograph and did so with a view to damaging their reputation.  And, whilst people are perhaps inclined to automatically distrust the public statements of big companies in situations like this (and, instead, support the ‘underdog’), it appears that Ryanair has a point.

How can anyone judge this?  Well, put simply, because Ryanair published a CCTV video online showing the staff standing or sitting around and then appearing to agree to the taking of a photograph.  All the staff members then move over and arrange themselves in a close formation on the floor before an individual takes a photograph of them lying on the floor (which they weren’t doing before).

Details

Great British Bake Off: When workplace tensions ‘knead’ solving!

cake

I don’t know who won The Great British Bake Off last night.  That’s a weird place to start a Bake Off-themed employment law blog, I know.  Unfortunately, my wife dozed off in the middle of the final last night, so we have to wait to watch the rest of it online tonight!

With the popularity of the show ballooning in recent years, more and more workplaces have decided to hold ‘Bake Off’ events to raise morale and/or raise money for charity.  I must admit to getting involved with such an event in my second week at a previous employer.

Just to set the background, I’d never properly baked in my life and so, obviously, thought that trying to bake a cake was the right way to win over my new colleagues.  Come the morning of the competition, from the outside at least, the cake looked fantastic.  The problem?  Firstly, it was a rather fragile two-tier cake, so I was forced to drive to work in no higher than fourth gear (to the utter joy of the traffic behind me) and, secondly, because the judge (who no doubt had been studying the critical technique of Paul Hollywood) called my sponge ‘ultimately disappointing’ and my dreams of Bake Off-style glory evaporated in an instant!

Why am I discussing this?  Well, Bake Off events in the workplace have the potential to cause workplace angst and, at very least, can cause staff tensions to rise.

Details

Red Dead Redemption 2: Is ‘crunching’ actually voluntary overtime?

Cowboy Later today, the review embargo lifts on the biggest video game since Grand Theft Auto 5.  Even those of you not of a video gaming persuasion have no doubt noticed the constant advertisements online, on the TV and on the side of buses for “Red Dead Redemption”.

What is Red Dead Redemption 2?  Well, it’s an adventure game set in the Wild West with the almost mandatory mix of horse chases, gun-slinging and exploring a vast desert-esque landscape.

So, why is it such a big deal?  One word: Rockstar.  Rockstar are the equivalent of Apple 10 years ago.  By that, I mean that nearly every product they make receives rave reviews (at least 95% on average) and is known for its brutal, gritty storytelling.  As an example of their attention to detail, in some shape or form, work on this game has been ongoing for eight years with a budget larger than many Hollywood movies!

So, surely, eight years is more than enough to make a good game.  Well, yes.  But Rockstar want to make ‘extraordinary’ games not just good or very good ones.  And this, unfortunately for them, has led to a lot of media controversy over supposedly ‘voluntary’ overtime and the issue of ‘crunching’.

Let’s tackle the media controversy first.

Details

Mental Health First Aid in the workplace

October the 10th marked World Mental Health Day, a time to stop and consider how we can best support those around us who may be struggling. Given the amount of time we collectively spend in the workplace each week, particular thought should be given to the importance of mental health support at work. 

There is already
legislation in place providing the requirement for employers to ensure employees receive immediate attention if they are injured or taken ill at work,
but what about helping those suffering with mental illness? If an employee for example has a panic attack or is expressing suicidal thoughts?

The concept of
‘Mental Health First Aid’ originated in Australia where Professor Anthony Jorm, a researcher from the University of Melbourne was discussing with his wife, Betty Kitchener, a registered nurse, a recent mental health conference that he had attended. Within the conversation it was remarked that ‘What we really need is first aid for depression’. The idea has spread rapidly from there – developing
into an internationally recognised programme comprised of simple steps that can be called upon to help a person in distress.

Details