The gig economy: The workplace changed forever? Dr Anne Sammon, Simmons & Simmons

Transcription

1 The gig economy: The workplace changed forever? Dr Anne Sammon, Simmons & Simmons 18 May 2017

2 Overview The gig economy Employment status The gig economy under attack Conclusion 1 / B_LIVE_EMEA1: v1

3 The gig economy 2 / B_LIVE_EMEA1: v1

4 The gig economy What is it? No single definition. Idea of short-term contracts/freelance work, rather than permanent stable employment Different from zero hours contracts 3 / B_LIVE_EMEA1: v1

5 The gig economy Why is it attracting so much attention? A number of high-profile employment cases. Trade unions see it as a threat. Estimates suggest that 5 million people are involved in the gig economy. Office for Budget Responsibility estimates that in , the gig economy will cost the Treasury 3.5 billion. 4 / B_LIVE_EMEA1: v1

6 Employment status 5 / B_LIVE_EMEA1: v1

7 The employment/self-employment spectrum Selfemployed Worker Employed Increasing amount of control Decreasing levels of protection 6 / B_LIVE_EMEA1: v1

8 Rights of employees Not to be unfairly dismissed. To receive a statutory redundancy payment. Not to be refused employment because of membership/non-membership of a trade union. Maternity leave, paternity leave, parental leave, adoption leave and associated pay (SMP, SPP, SAP, SPP). To request flexible working. To be given statutory minimum notice. Not to be treated less favourably because of a protected characteristic (discrimination). Not to be subject to indirect discrimination. Not to be harassed. Not to be victimised because of a protected act. To be paid the national minimum wage. To have rest breaks. To not be required to work more than 48 hours per week (unless have opted out). 7 / B_LIVE_EMEA1: v1

9 Rights of workers Not to be unfairly dismissed. To receive a statutory redundancy payment. Not to be refused employment because of membership/non-membership of a trade union. Maternity leave, paternity leave, parental leave, adoption leave and associated pay (SMP, SPP, SAP, SPP). To request flexible working. To be given statutory minimum notice. Not to be treated less favourably because of a protected characteristic (discrimination). Not to be subject to indirect discrimination. Not to be harassed. Not to be victimised because of a protected act. To be paid the national minimum wage. To have rest breaks. To not be required to work more than 48 hours per week (unless have opted out). 8 / B_LIVE_EMEA1: v1

10 Rights of the genuinely self-employed Not to be unfairly dismissed. To receive a statutory redundancy payment. Not to be refused employment because of membership/non-membership of a trade union. Maternity leave, paternity leave, parental leave, adoption leave and associated pay (SMP, SPP, SAP, SPP). To request flexible working. To be given statutory minimum notice. Not to be treated less favourably because of a protected characteristic (discrimination). Not to be subject to indirect discrimination. Not to be harassed. Not to be victimised because of a protected act. To be paid the national minimum wage. To have rest breaks. To not be required to work more than 48 hours per week (unless have opted out).). 9 / B_LIVE_EMEA1: v1

11 The gig economy under attack 10 / B_LIVE_EMEA1: v1

12 Rights of workers Not to be treated less favourably because of a protected characteristic (discrimination). Not to be subject to indirect discrimination. Not to be harassed. To be paid the national minimum wage. To have rest breaks. To not be required to work more than 48 hours per week (unless have opted out). Not to be victimised because of a protected act. 11 / B_LIVE_EMEA1: v1

13 Employment Tribunal decisions Aslam v Uber; Dewhurst v CitySprint Unlawful deductions from wages (through alleged failure to pay the national minimum wage). (Aslam v Uber) Failure to provide paid leave (under the Working Time Regulations). (Aslam v Uber; Dewhurst v CitySprint) Employment Tribunals found that in both cases, the individuals were workers. 12 / B_LIVE_EMEA1: v1

14 Discrimination protection Who does it apply to? Under the Equality Act 2010 ( EA 2010 ) applies to those who are in or applying for employment under: A contract of employment A contract of apprenticeship A contract personally to do work Jivraj v Hashwani needs to be more than just a contract personally to do work. Halawi v WDFG UK key factors are: Subordination (individual being generally bound to act on the employer s instructions); and Personal service 13 / B_LIVE_EMEA1: v1

15 Discrimination protection Why does this matter? Unattractive for an Employment Tribunal to rule that an individual is not an employee or a worker in circumstances where there is an allegation of discrimination. How do you avoid this? Take all necessary steps to prevent any discrimination. Consider having an express policy that you will not discriminate on the basis of any protected characteristic. Monitor any decisions that are made as to whether to engage/not engage to check for any concerning patterns. 14 / B_LIVE_EMEA1: v1

16 Pimlico Plumbers Ltd and Mullins v Smith The facts Mr Smith (the Claimant) was engaged as an independent contractor. The Claimant filed tax returns on the basis of being self-employed. There was no obligation to accept work and no obligation for work to be offered. The Claimant was required to drive a Pimlico Plumbers van and wear a uniform. Plumbers could swap jobs between themselves and could sub-contract specialist roles. There was no express right of substitution in the contract between the Claimant and Pimlico Plumbers. Pimlico Plumbers terminated their contract with the Claimant 4 months after he suffered a heart attack. 15 / B_LIVE_EMEA1: v1

17 Pimlico Plumbers Ltd and Mullins v Smith The claims Unfair dismissal. Wrongful dismissal. Entitlement to pay during medical suspension. Holiday pay. Unlawful deductions from wages. Disability discrimination. 16 / B_LIVE_EMEA1: v1

18 Pimlico Plumbers Ltd and Mullins v Smith Employment Tribunal decision Preliminary Hearing Issues were whether Mr Smith was: An employee for the purposes of the Employment Rights Act 1996 ( ERA 1996 ). A worker for the purposes of the ERA In employment (under the EA 2010) The ET held that Mr Smith was: Not an employee for the purposes of the ERA A worker for the purposes of the ERA In employment (under the EA 2010). 17 / B_LIVE_EMEA1: v1

19 Pimlico Plumbers Ltd and Mullins v Smith Reasons for the Employment Tribunal decision Main purpose of the agreement between Mr Smith and Pimlico Plumbers was for Mr Smith to provide work for Pimlico Plumbers. Mr Smith had to work a minimum number of hours per week. There was no unfettered right to substitute at will. High degree of restriction on Mr Smith s ability to work in a competitive situation. 18 / B_LIVE_EMEA1: v1

20 Pimlico Plumbers Ltd and Mullins v Smith Appeal to the Employment Appeal Tribunal Pimlico Plumbers appealed against the finding that Mr Smith was a worker. Mr Smith appealed against the finding that he was not an employee. The EAT upheld the ET s decision. 19 / B_LIVE_EMEA1: v1

21 Pimlico Plumbers Ltd and Mullins v Smith Court of Appeal decision Upheld the ET and EAT decisions. Question of personal service a conditional right to provide personal service is not determinative (whereas an unfettered right to provide a substitute probably would be). Degree of control exercised by Pimlico Plumbers was consistent with worker status (not self-employment). 20 / B_LIVE_EMEA1: v1

22 Work and Pensions Committee Self employment and the gig economy Published 29 April 2017 Recommends that the default is that an individual is a worker, rather than the individual needing to prove this status. Self-employment is neither inherently good nor bad. Critical of the idea that flexibility is not possible through traditional employment model. 21 / B_LIVE_EMEA1: v1

23 Independent Review of Employment Practices in the Modern Economy The Taylor Review Remit to consider the implications of new models of working on the rights and responsibilities of workers, as well as on employer freedoms and obligations. Expected to last until July Review will highlight the blurring of boundaries between people who are selfemployed and people who are employees. 22 / B_LIVE_EMEA1: v1

24 Conclusion 23 / B_LIVE_EMEA1: v1

25 Conclusion The workplace changed forever? There is likely to be further scrutiny of, and further challenges to, the gig economy. Not all roles will be suited to this new model degree of control that is needed is a key factor in determining the appropriateness. Contractual documentation can be helpful (but if does not reflect the reality, can be problematic). BUT the gig economy is here to stay. 24 / B_LIVE_EMEA1: v1

26 Key Contacts Dr Anne Sammon Managing Associate T E anne.sammon@simmons-simmons.com Follow us on 25 / B_LIVE_EMEA1: v1

27 The gig economy: The workplace changed forever? simmons-simmons.com This document is for general guidance only. It does not contain definitive advice. SIMMONS & SIMMONS and S&S are registered trade marks of Simmons & Simmons LLP. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated practices. Accordingly, references to Simmons & Simmons mean Simmons & Simmons LLP and the other partnerships and other entities or practices authorised to use the name Simmons & Simmons or one or more of those practices as the context requires. The word partner refers to a member of Simmons & Simmons LLP or an employee or consultant with equivalent standing and qualifications or to an individual with equivalent status in one of Simmons & Simmons LLP s affiliated practices. For further information on the international entities and practices, refer to simmonssimmons.com/legalresp. Simmons & Simmons LLP is a limited liability partnership registered in England & Wales with number OC and with its registered office at CityPoint, One Ropemaker Street, London EC2Y 9SS. It is authorised and regulated by the Solicitors Regulation Authority. A list of members and other partners together with their professional qualifications is available for inspection at the above address. 26 / B_LIVE_EMEA1: v1

28 elexica resources relevant to this session Our dedicated International Employment Issues microsite provides a multi-jurisdictional guide to key employment topics Subscribe to our quarterly Working Relations newsletter summarising recent UK employment law developments Visit the Events page for forthcoming seminars and training days and the Training page for video recordings, podcasts and slides Request a demo Contact elexica@simmons-simmons.com or speak to your usual Simmons contact to find out more. 27 / B_LIVE_EMEA1: v1