Uber: The highest court in the land agrees drivers are ‘workers’
The Supreme Court in Uber v Aslam has held that Uber drivers are ‘workers’ and not ‘self- employed contractors’.
The key ‘take away’ point is that when deciding whether an individual is a worker or not, the starting point is whether the individual falls into the statutory definition of a ‘worker’ for the relevant statutory provision relied upon by the individual. The starting point is not what the contract between the business and individuals says. The Supreme Court made clear that the reality of the relationship between the parties in practice should be the focus not what is recorded on paper as being the relationship and label attached to that relationship.
In applying the above tests to the Uber case facts the Supreme Court held that the tribunal was entitled to find that Uber drivers are ‘workers’, not self-employed subcontractors and they are ‘workers’ from the moment they switch on their apps, and are available for work in their area, to the time when they switch their apps off at the end of the day (excluding breaks).
This decision means that Uber drivers are entitled to claim minimum wage (including backpay for minimum wage), with their minimum wage claims being based upon their entire working day. They can also claim 5.6 weeks’ paid annual leave each year, and will have whistleblowing and similar rights.
The Supreme Court’s judgement sets a precedent for how tribunals will decide future cases regarding employment status. The test of worker status remains a case of weighing up a number of different factors, however this case makes clear that a high degree of control exercised by the business that engages individuals will favour an argument that those individuals are likely to be workers. Also, the employment status set out in any written agreement should not be the focus of tribunals in assessing employment status rather analysing the relationship worked in practice against the relevant statutory definition relied upon in the claim.
Employers should therefore be aware that a written contract confirming self employed status will likely offer little protection if the relationship practically works in a way which is inconsistent with the written terms.
Are individuals who ‘sleepover’ but are ‘on call’ in case of an emergency entitled to pay in accordance with the National Minimum Wage Regulations for the time they are asleep?
No, held the Supreme Court in Royal Mencap Society v Tomlinson-Blake, a decision which will mostly impact on businesses and individuals in the care industry.
The Supreme Court held that anyone working a sleepover shift i.e.they are expected to sleep (and given facilities to do so) unless disturbed to deal with an emergency is not entitled to have that time count towards their National Minimum Wage entitlement. As a result, the common system of providers paying workers a flat lower rate than day work for sleepover shifts will likely continue to be industry practice, save for time when workers are woken up to deal with an issue/ emergency which will count as time for National Minimum Wage purposes.
The Supreme Court’s decision in this case resolves the longstanding belief that sleep-in shifts could qualify for the national minimum wage following a decision in a Court of Appeal case called British Nursing v HMRC. That held that a worker could be ‘working’ when asleep on a sleepover shift. The issue had taken a lot of judicial time in resolving with this case reaching the highest court in the land.
New Public Health England: Shielding
Public Health England has issued new guidance to those categorised as extremely clinically vulnerable:
From 1 April 2021, those categorised as extremely clinically vulnerable are no longer advised to shield and will no longer be eligible for statutory sick pay (SSP) or similar benefits as a result of being advised to shield.
Changes to the off-payroll rules (IR35) will take effect in the private sector from 6 April 2021 (delayed from April 2020 due to Covid-19). These rules have been in place for the public sector since April 2017.
The change in IR35 rules will impact on any client receiving services from a worker through their intermediary.
The purpose of the rules is to shift the responsibility for determining employment status from an individual contractor to the organisation that engages them.
The rules apply to all public sector clients and private sector companies that meet 2 or more of the following conditions:
- you have an annual turnover of more than £10.2 million
- you have a balance sheet total of more than £5.1 million
- you have more than 50 employees
For small private sector organisations the rules provide that the task of determining employment status remains with the individual contractor not the small private sector organisation which engages them. If the rules apply, the organisation paying the contractor’s PSC or other intermediary is then also responsible for deducting income tax and National Insurance Contributions (NIC) at source, as well as paying any employers NIC that are due.
Government guidance can be found here on what you need to do to establish if the new rules apply to your organisation and what to do if this is the case: https://www.gov.uk/guidance/april-2020-changes-to-off-payroll-working-for-clients
Can an employer always rely on the ‘reasonable steps’ defence to harassment in circumstances where it can evidence it has provided training to the harasser and other employees?
Not in circumstances where that training had become “stale” and needed refreshing, held the Employment Appeal Tribunal (EAT) in the case of Allay v Gehlen.
The Claimant was subjected to racist comments on a regular basis. The employer relied on the ‘reasonable steps’ defence under s109(4) Equality Act 2010 in order to seek to avoid vicarious liability of the acts of the individual harasser. The defence was based on the fact the employer had taken all reasonable steps to prevent the harassment because it had provided relevant training to the harasser and other employees over a year prior to the harassment.
The EAT upheld the tribunal’s decision to reject the defence. The EAT found that the training had become stale, evidenced by the racist comments as well as managers failing to report them when they were aware.
This case sends out a clear message to employers that equality and diversity training must (a) be given to staff and importantly (b) regularly updated in order for them to be able to rely on the all reasonable steps defence in harassment claims.