‘Worker’ Status of Uber Drivers Confirmed in Landmark Case

In a ground-breaking ruling, the Employment Appeal Tribunal (EAT) has confirmed that drivers for online cab giants Uber are ‘workers’, as defined by the Employment Rights Act 1996, and are thus entitled to a panoply of rights and benefits.taxis

In upholding complaints by a number of Uber drivers who plied their trade in London, an Employment Tribunal (ET) had found that, whenever they had the company’s app switched on and were willing to accept assignments, they qualified as workers and were, amongst other things, entitled to the protection of the Working Time Regulations 1998 and the National Minimum Wage Act 1998.

In challenging that ruling, Uber pointed out that the drivers had no written contract with the American parent company’s London-based subsidiary. Whilst they did sign written agreements with the parent company, their terms were inconsistent with the existence of any worker relationship. It was submitted that the agreements made clear that the drivers provided transportation services to those who hailed them and that Uber provided services to the drivers as their agents. The drivers were carrying on business on their own account and were not required to work for Uber.

In dismissing the appeal, however, the EAT found that the contractual documents did not reflect the true relationship between the drivers and the London subsidiary. The reality was that the drivers formed a central part of Uber’s business in providing transportation services. The level of control to which they were required to submit pointed away from a conclusion that they worked on their own account and that their direct contractual relationship was with their passengers. It could not be said that the London subsidiary merely acted as the drivers’ agent.

The obligations imposed upon the drivers to accept trips offered by Uber, and not to cancel trips once accepted – there being potential penalties for doing so – was another powerful indicator that the relationship was not one of agency. If they had the app switched on, the drivers were required to be willing and able to accept assignments and Uber described them as being ‘on duty’. There was nothing inconsistent or perverse about the ET’s conclusions.

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Christmas and the Workplace

Christmas is a busy time for a lot of businesses, with many taking on temporary staff to cope with the extra workload. At the same time, many employees will want to take time off to spend with their family, go on holiday or attend religious services.

Employers are wise to plan ahead to cope with the varying demands placed on them at this time of year, and to this end the Advisory, Conciliation and Advisory Service has produced a guidance leaflet covering employees’ rights with regard to time off on bank holidays, annual leave and sickness absence over the Christmas period and Christmas parties.

 

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Employers – Disciplinary Proceedings Require an Open Mind

Hard-edged opinions are all too easily formed in the heat of disciplinary proceedings, but employers must be careful to stand back and take a balanced approach. In one case in which that did not happen, a senior hospital radiologist won the right to substantial compensation following her unfair dismissal.

HospitalWhen facing a disciplinary hearing, the woman had compiled a defence pack of documents at home. It included extracts from patient records from which identifying information had only partially been redacted. Her employer, an NHS trust, took the view that that was a serious breach of its patient confidentiality policies and she was summarily dismissed for gross misconduct.

In upholding her unfair dismissal claim, an Employment Tribunal (ET) found that the decision to sack her had been taken with a closed mind. There had been no consideration as to whether she had acted wilfully or whether what she had done justified summary dismissal.

In rejecting the trust’s challenge to that ruling, the Employment Appeal Tribunal found that the relevant manager had taken an unreasonably constrained approach, which failed to allow for the possibility of lesser sanctions and ignored mitigating factors. The trust’s appeal against findings that her dismissal was also wrongful, and that she had not been guilty of any contributory fault, succeeded and those issues were remitted to the same ET for reconsideration.

Government Takes Action to Boost Minimum Wage Compliance in Care Sector

The position of ‘live-in’ workers as regards employment status and rights has long been a bone of contention in the care industry in particular, leading the Government to create a new compliance scheme for social care employers.Care Home

Amid concern that ‘sleep-in’ shift workers may have been incorrectly paid less than the National Minimum Wage, the new Social Care Compliance Scheme will give employers who opt to join up to a year to identify any payments due to workers and, where arrears of pay are identified, three months to make them good.

Any social care employers that are currently the subject of a complaint will be contacted by HM Revenue and Customs (HMRC) to encourage them to sign up for the scheme. Where an employer chooses not to participate in the scheme they will be ‘subject to HMRC’s normal enforcement approach’.

The thin margins operating in the care sector have led to a general waiver of any PAYE penalties for such employers relating to underpayments arising prior to 26 July 2017, and enforcement action in respect of payments for sleep-in shifts was temporarily suspended then and recommenced only on 1 November 2017.

The updated guidance on sleep-in shifts can be seen here: National minimum wage law: enforcement

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HSE Publishes Annual Workplace Ill Health and Injury Statistics

The Health and Safety Executive (HSE) has published annual statistics for health and safety at work in Great Britain for the year April 2016 to March 2017. These show that an estimated 31.2 million days were lost through work-related ill health (25.7 million days) and non-fatal workplace injury (5.5 million days).Crane

In addition, in 2016/2017 there were:

137 fatal injuries – down from 144 in the year 2015/2016;
1.3 million working people suffering from work-related ill health (new or longstanding cases) – the same as for the previous year;
70,116 non-fatal injuries reported by employers under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013. This compares with 72,702 in the year 2015/2016; and
609,000 injuries at work according to self-reports from the Labour Force Survey, compared with 621,000 in the previous year.
The annual cost of work-related injury and new cases of ill health in 2015/2016, excluding long-latency illness such as cancer, was £14.9 billion, compared with £14.1 billion for the year 2014/2015.

In 2015, there were 2,542 deaths from mesothelioma as a result of past exposure to asbestos, compared with 2,515 in the year 2014.

Annual report for 2015/2016

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Employment Tribunal Fee Refund Scheme Launched

Following the decision of the Supreme Court that the introduction of Employment Tribunal fees in July 2013 was unlawful (R on the application of UNISON v Lord Chancellor [2017] UKSC 51), the Ministry of Justice announced that the Government would cease charging fees immediately and take steps to refund payments made since their introduction – no easy task.

The first stage of the ET fee refund scheme has now been announced. Up to around 1,000 people will now be contacted individually and given the chance to complete applications before the full scheme is opened up in the coming weeks. The Government is also working with trade unions that have supported large multiple claims potentially involving hundreds of claimants.

Successful applicants to the scheme will not only be refunded the fee amount but will also be paid interest at a rate of 0.5 per cent, calculated from the date of the original payment up until the refund date.

This opening phase of the refund scheme will last for around four weeks. Further details, including information on how it can be accessed, will be made available when the scheme is rolled out fully.

Further information can be found here.

High Court Bans Proposed Royal Mail Strike as a Breach of Contract

Trade unions have a statutory right to call their members out on strike so long as the correct procedures are followed. However, as one case concerning proposed industrial action by more than 100,000 Royal Mail workers showed, that right can be cut down by agreement.

The Communication Workers Union was in dispute with Royal Mail Group Ltd. in respect of a number of matters, including pensions, pay and working hours. A ballot of the union’s members yielded a 73.7 per cent turnout and 89.1 per cent of those who voted cast their ballots in favour of a three-day strike. There was no dispute that the union had complied with the procedural requirements of the Trade Union and Labour Relations (Consolidation) Act 1992.

However, the union and the company had reached a collective agreement in 2014 which contained detailed provisions as to what was to happen in the event of a dispute. Amongst other things, the agreement – which was expressed to be a legally enforceable contract – provided that disputes were to be referred to external mediators, appointed by Acas, and that industrial action could not be taken before such resolution measures had been exhausted.

In ruling the proposed strike unlawful and granting an injunction to restrain it, the High Court rejected the union’s arguments that the company’s reliance on the agreement was opportunistic and not in good faith. It had been entitled to refer the dispute to external mediation at the time it did and the union was bound not to call a strike until that process had been completed.

The Court noted that, from the company’s point of view, damages would not be an adequate remedy were the strike permitted to go ahead. The proposed stoppage would have a very damaging impact on both the company and its customers, would result in the loss of millions of pounds in revenue and would harm the company’s reputation for reliability in a highly competitive market.

Employer Not Liable for Office Worker’s Chair Prank

If a negligent worker causes injury in the course of his job, compensation is generally payable by his or her employer under the principle of vicarious liability. However, as one case concerning an office prank showed, that does not apply where the worker concerned is on a frolic of his own.

A woman suffered a serious injury to her lower back when a colleague pulled her chair away just as she was about to sit on it. Lawyers on her behalf sued the local authority for which both of them worked and damages were agreed at £58,000, subject to the employer being found liable.

In dismissing her claim, a judge noted that the colleague got on well with the woman and normally behaved professionally. There was no culture of pranks in the office and he had not acted maliciously. With little more than a flick of his hand, he had moved the chair as a joke on the spur of the moment. His act of pure folly was carried out in an entirely private capacity and was unconnected to his work.

The New Data Protection Bill

The Data Protection Bill 2017 was introduced to the House of Lords on 13 September 2017. The Bill, which is due to come into force in May 2018, will replace the Data Protection Act 1998 and incorporate the General Data Protection Regulation into national law so that the rules continue to apply after the UK has left the European Union.

The aims of the Bill are to:

  • make UK data protection laws fit for the digital age in which an ever increasing amount of data is processed;
  • give individuals greater control over their personal data; and
  • ensure that the UK is prepared for the future after Brexit.

The Department for Digital, Culture, Media and Sport has published the following factsheets explaining various aspects of the Bill:

  • An Overview of the Bill;
  • General Processing;
  • Law Enforcement Processing;
  • National Security Processing; and
  • Information Commissioner and Enforcement.

Under the revised legislation, the maximum penalty for regulatory breaches will increase from £500,000 to £18 million or 4 per cent of the undertaking’s total worldwide turnover in the preceding financial year – whichever is higher.

The text of the Bill and updates on its progress through Parliament can be found at https://services.parliament.uk/bills/2017-19/dataprotection.html.

These articles are provided for general interest and information only. They do not constitute legal advice. Whilst every effort is made to ensure that the content accurately reflects the law in England as at the date of its transmission, no liability is accepted for any loss or damage arising from any act or omission resulting from any information contained herein.

Strike Ballots Test Case – Trade Unions Don’t Have To Give Precise Dates

Trade unions have long been required to ballot members before calling a strike, but only recently have they also been required to indicate on voting papers the period, or periods, during which industrial action is proposed. That provision came under the spotlight in a High Court test case concerning a planned strike by airline pilots (Thomas Cook Airlines Limited v British Airline Pilots Association).

The dispute between the pilots and Thomas Cook Airlines Limited in respect of pay and conditions was acknowledged to be a trade dispute within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Following a ballot held by their trade union, a majority of affected pilots voted in favour of strike action.

In seeking an injunction to halt the strike, Thomas Cook argued that the strict terms of TULRCA had not been complied with. In particular, the airline pointed to Section 229(2D), which was incorporated into TULRCA by the Trade Union Act 2016 and came into force in March 2017.

Section 229(2D), which had not been considered by a court before, requires that voting papers used in such ballots must indicate the period or periods within which industrial action is expected to take place. The papers used in the instant case informed pilots that ‘discontinuous’ strike action was proposed on ‘dates to be announced’ between the period from 8 September 2017 to 18 February 2018. The airline argued that that wording was not in accordance with the provision, that the ballot was thus invalid and that no strike action could lawfully be taken.

In refusing to grant the order sought, however, the Court found that it was more likely than not that the ballot papers complied with the provision in Section 229(2D). This had to be read in the context of all the uncertainties inherent in trade disputes and it appeared unlikely that Parliament had intended to require trade unions to give further details or to specify precise dates. It was sufficient for the voting papers to indicate the period during which the strike action was expected to take place and, in the circumstances, those who took part in the ballot would have understood what they were being asked to vote for.