News & Updates

March Employment Briefing

Martin Stephen

Published byMartin Stephen

19th March 2021

March Employment Briefing

Welcome to March’s Employment news briefing, providing a summary of some of the recent employment judgements and the UK Budget.

If you have any questions about any of the topics covered, or would like to discuss anything with our Employment team, please call Martin Stephen on 0141 248 3434 or email mss@wjm.co.uk

UBER BV AND OTHERS v ASLAM AND OTHERS – UBER DRIVERS ARE “WORKERS” – WHAT ARE THE IMPLICATIONS?

In the case of Uber and others v Aslam and others, the Supreme Court took a purposive approach and found that the purpose of the Employment Rights Act 1998 was to give protection to vulnerable individuals who have little or no say over their pay and working position due to the power imbalance. Employees need protection because they are in the positon of subordination and dependency in relation to their employers. The Supreme Court Justices also observed that the legislation precludes employers from contracting out of these provisions. The Supreme Court accordingly found that Uber drivers were workers. This finding was based on five key aspects of the relationship between Uber and its drivers:-

1. Uber sets the fare for a ride and drivers cannot increase it – Uber therefore dictates how much drivers are paid for the work they do;

2. The contract terms are imposed by Uber and drivers have no say in them;

3. Once a driver has logged into the App Uber constrains the driver’s choice about whether or not to accept requests for rides. Uber retains absolute discretion to accept or decline any request for a ride and penalises drivers if too many trip requests are declined or cancelled by automatically logging the driver off the App for several minutes;

4. Uber exercises significant control over how the services are delivered. For example, any driver who fails to maintain a required average rating will receive a series of warnings and if their rating does not approve, their relationship with Uber will be terminated; and

5. Uber restricts communications between passenger and driver to the minimum and actively prevents drivers from establishing any relationship with passengers.

The Supreme Court stressed that the service provided by the drivers is very closely controlled by Uber and drivers are in a position of subordination and dependency to Uber. As the drivers have little prospect to improve their economic situation through professional or entrepreneurial skills, the only way for them to increase their earnings is to work greater hours for Uber and meet their targets and requirements.

Although the Uber drivers were held to be workers, they have not won the full protection of employment rights afforded to an employee. It remains to be seen how Uber will react to the Judgment, but this ruling is likely to have a significant impact on the gig economy.

One option that Uber could adopt is to offer workers a “self-employed plus” status – as Hermes did after losing an Employment Tribunal hearing in 2018. Under the “self-employed plus” model, individuals would enjoy a greater number of benefits such as holiday pay, individually agreed rates and Union representation.

Either way, operators within the gig economy will need to fundamentally rethink their structure or accept their workers as “workers”.

Businesses should review their contracts and working arrangements with any individuals they engage as contractors and consider whether these individuals can truly be said to be carrying out the business on a self-employed basis. Employers should ensure that their contracts and arrangements are an accurate reflection of the agreed working relationships with their contractors or risk facing the same issues now confronting Uber.

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THE BUDGET – WHAT EMPLOYERS SHOULD KNOW


Coronavirus Job Retention Scheme – extended until 30 September 2021.
 Until 30 June, the Government will continue paying 80% of furloughed staff’s wages (up to a maximum of £2,500 per month).
 From 1 July, the Government will contribute 70% (up to a maximum of £2,187.50) and employers will need to contribute 10% towards the hours that staff cannot work.
 From 1 July, the Government will contribute 60% (up to a maximum of £1,875) and employers will need to contribute 10% towards the hours that staff cannot work.

Self-Employment Income Support Scheme – extended to September 2021 and will support an additional 600,000 people who submitted a Tax Return for 2019-2020.

National Living Wage Rate – set to increase to £8.91 from April 2021 and is available to individuals over 23 years old.

Help to Grow:

Digital – SMEs can register for digital training through this Government Scheme and also get a 50% discount when buying certain approved software worth up to £5,000.
Management – SMEs can also register for management training which will be provided through executive development programmes. The Government will cover 90% of cost of this.

Introduction of an unsponsored points-based Visa system for high skilled individuals – intended to help attract international talent and expertise in science, research and technology.

Reclaiming statutory sick pay (SSP) – SMEs can continue to reclaim up to 2 weeks of eligible SSP costs per employee.

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BEWARE ROGUE EMPLOYEES HAVING UNAUTHORISED ACCESS TO DATA

For the second time since the Information and Commissioner’s Office (“ICO”) was established in 1984, it successfully prosecuted individuals under the Computer Misuse Act 1990. This is worth noting as the penalties under the 1990 Act are significantly harsher than those under the Data Protection Act 2018.

Kim Doyle, an employee of breakdown and road-assistance business RAC, admitted gaining unauthorised access to data (including partial names and phone numbers of individuals in road-traffic accidents) and selling it unlawfully to William Shaw, a director at accident claims-management firm LIS Claims without her employer’s permission. Mr Shaw then used this information to make nuisance calls to individuals involved in the road-traffic accidents.

Both Ms Doyle and Mr Shaw were found guilty of offences under the Computer Misuse Act 1990. By prosecuting under the 1990 Act – with the accompanying penalties – the ICO demonstrated how seriously it treats unauthorised access to personal data held electronically. Ms Doyle and Mr Shaw were sentenced to 8 months’ imprisonment, suspended for two years. In addition, they were each required to carry out 100 hours of unpaid work and contribute towards costs. Furthermore, the court issued a Confirmation Order, in terms of which Ms Doyle was ordered to pay £25,000 and Mr Shaw was ordered to pay £15,000. Should either not pay, they could be imprisoned for up to 3 months.

Employers should see this as a prompt to ensure that they are adequately safeguarded against the risks posed by rogue employees who have access to personal data. Firms should implement robust processes to identify suspicious activity and when data is exported to protect against these threats. This is particularly important amid the rise in home work and lack of in-person supervision. Employers should vet and train new employees; communicate regularly with all staff; and carry out compliance checks to minimise the threat to the business.

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ALLAY (UK) LIMITED v GEHLEN – ENSURE YOUR DISCRIMINATION TRAINING IS REGULARLY REFRESHED

Mr Gehlen – a man of Indian origin – raised a complaint that he had faced racist remarks from colleagues. Despite raising the matter with his manager and HR, neither took any action. Mr Gehlen was later dismissed on the basis of performance and thereafter raised a formal complaint about the harassment he had been subject to.

The employer (Allay) sought to rely on the defence of having taken “reasonable steps”. This included training staff, with one slide on harassment and setting out what employees should do if they overhear unacceptable remarks. The firm also had an equal opportunities policy in place, as well as an anti-bullying and harassment policy.

The Tribunal rejected the employer’s defence given that the training was clearly no longer effective. The remarks themselves, in addition to the responses (or lack thereof) from HR and the manager when the complaints were raised were indicative of this.

At appeal, the Employment Appeal Tribunal (EAT) advised that Tribunals should start by looking at any steps already taken and their likely effectiveness at the time. In order to assess this, Tribunals should look at when the existing steps stopped being effective. Regard may also be given to the costs and practicality of taking further action as well as how effective it is likely to be.

The EAT also provided guidance on how to assess training:-

1. The Tribunal should look at how long and in depth the training is; and

2. The training should be refreshed where harassment is clearly still occurring.

This case highlights the need for employers to ensure that their equality and whistleblowing policies and training are thorough and regularly updated. Ideally, training should be delivered at least annually, and more regularly where employees show disregard for it. Ideally, training should be tailored to the individuals, their roles and the business itself, with training being face to face and in small groups. This should help demonstrate employee engagement with the training and ensure that employees understand what is expected of them.

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NORTHBAY PALEGIC LIMITED v ANDERSON – EMPLOYEE’S COVERT RECORDING OF EMPLOYER SHOULD NOT AUTOMATICALLY LEAD TO HIS DISMISSAL

In the case of Northbay Palegic Limited v Anderson, an employee set up a camera in his office as he suspected someone had gone into his private office and accessed his computer to find evidence against him. In response, his employer terminated his employment contract, claiming that it was a breach of the law and therefore amounted to serious misconduct.

The EAT held that the employee’s actions had to be the subject of a balancing act, weighing up the level of intrusion caused by the filming on one hand against protecting the rights of the employee who set up the monitoring on the other. The Tribunal further held that it was not automatically unlawful to have set up the covert recording, as:-

• The camera was positioned so as to almost exclusively film the employee’s own private office and only a very small portion of the wider office;
• The employer ordinarily had no need to go into the room;
• The employee had grounds to believe someone had been in his office while he was out; and
• It was not hypothetical or fanciful to imagine that another director was gaining unlawful access to his computer given his falling out with the other directors.

This case highlights that employers should not make kneejerk reactions in response to discovering such conduct. Naturally, discovering an employee’s covert recording demonstrates a breach of trust and confidence between the employer and employee but a balancing act needs to be carried out when determining how best to proceed.

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The information contained in this newsletter is for general guidance only and represents our understanding of relevant law and practice as at March 2021. Wright, Johnston & Mackenzie LLP cannot be held responsible for any action taken or not taken in reliance upon the contents. Specific advice should be taken on any individual matter. Transmissions to or from our email system and calls to or from our offices may be monitored and/or recorded for regulatory purposes. Authorised and regulated by the Financial Conduct Authority. Registered office: 302 St Vincent Street, Glasgow, G2 5RZ. A limited liability partnership registered in Scotland, number SO 300336.