Employment status was a hot topic as 2018 unfolded. Uber’s long struggle continued in the Court of Appeal in October, in light of the findings of the tribunals in Aslam v Uber BV. The tribunals have thus far found that Uber’s taxi drivers are workers, contrary to Uber’s position that they are self-employed drivers and Uber is simply a digital platform they use to do their job. By attaining worker status, 60,000 Uber drivers now have potential claims for holiday pay and minimum wage. Likewise, in Pimlico Plumbers v Gary Smith, the Supreme Court found that – despite having a self-employed contract – Mr Smith was also a worker and similarly entitled to employee rights.
The difficulty lies in interpreting this area of law – particularly in light of the growing gig economy – and each a case is fact specific. Tribunals look at where control lies in the relationship. For example, while Mr Smith was on a self-employed contract, he was also required to wear a Pimlico-branded uniform, drive a liveried van; carry a Pimlico ID, and was able to swap jobs with other Pimlico plumbers – akin to swapping a shift with a colleague. The Supreme Court was therefore entitled to conclude that Mr Smith was a worker.
To continue with the employment status theme, the question many organisations have been left asking in 2018 is ‘what now?’.
In Sash Window Workshop and another v King, in late 2017, the European Court of Justice agreed that Mr King should have been paid annual leave. However, 12 months on, employers have been left waiting to learn how far the back-pay liability can stretch. Mr King could be entitled to compensation for the full length of his 13 years’ service, but in theory, for other workers and organisations, claims could go as far back as 1996, when the Working Time Regulations came into force.
The decision, which lies with the UK courts, is imminent, and the impact could be staggering. While employers have no control over the outcome, the message is clear – be considered, moving forward, surrounding the benefits and basic rights afforded to the workforce. Arguably this is something more businesses should consider anyway because it helps attract and retain talent when the labour market is tough.
Shared Parental Pay (SPL)
The low number of families taking advantage of Shared Parental Leave has been frequently debated throughout 2018, not least because – despite predicted uptake levels of eight per cent when the scheme was introduced – figures as low as two per cent have been reported.
The government’s Share the Joy campaign – launched in February – appears to have had little effect. Stigma, lack of awareness and financial constraints are just some of the possible reasons for the limited success of SPL. But arguably, not much will change given the ruling in Ali v Capita Customer Management.
The EAT ruled that it is not discriminatory to refuse a new father enhanced pay while on shared parental leave, irrespective of any enhanced maternity pay the mother may receive. The outcome has been referred to the Court of Appeal, but for the time being this result is likely to do little to address the SPL decisions that families take.
It would be impossible to reflect on 2018 without a nod to the General Data Protection Regulation (GDPR) – undoubtedly one of the most talked about step changes in data protection legislation ever. While many of the recommended practices have existed for some time, there is now a newfound degree of clarity, debate and obligation imposed on businesses.
While any complaints arising from a GDPR breach will be lodged with the Information Commissioner’s Office (ICO), employers need to be more mindful of the consequential breakdown of colleagues’ trust and confidence. Plus, if a breach relates to a claim they could take to a tribunal – for example, for constructive dismissal – the considerations are even more acute. Employees are also lodging an increasing number of data subject access requests, for instance, either during or following their dismissal. If any personal remarks from a line manager are found to have influenced the exit decision or the employee relations status, this could be a conversation the organisation wished they weren’t having. Transparency and ethics are paramount – as well as keeping all data secure.
In the year the #MeToo movement swept through the media, the number of current and historic sexual misconduct complaints continued to rise throughout the employment landscape. Individuals are being encouraged to be vocal about harassment and bullying, which must act as one of the most fundamental learning points for employers from 2018 – they are obliged to act and take a complaint seriously if it is brought to their attention. They need to take more proactive steps to ensure that, culturally, they convey and adopt a ‘no tolerance’ approach. From training and communication, to the actions taken if a complaint is lodged, everything matters, particularly when the ethics of non-disclosure agreements is coming into question. This issue is in the spotlight, and that spotlight is only going to get brighter.
Rafia Ahmad is a senior solicitor at ESP Law