1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

Another triumph for cyclists

Following in the tracks of CitySprint, Deliveroo and Excel, Addison Lee is the latest company to wrongly classify its workforce.

In a claim again supported by the Independent Workers Union of Great Britain (IWGB), an employment tribunal has held that Addison Lee wrongly classified Christopher Gascoigne as an independent courier. The judge hearing the case, Ms Joanna Wade, was the same judge who made the damming finding against CitySprint in January (see http://www.ukemploymenthub.com/citysprint-courier-delivered-employee-status-by-employment-tribunal). As in the CitySprint case, Judge Wade was critical of the construction of the contract that Addison Lee had put in place in an attempt to avoid a finding of worker status. Further, Judge Wade criticised an indemnity included in the contract against any liability Addison Lee may face based on any employment-related claim. Not only was it thought to be an attempt to frighten the worker off litigating, it also suggested that Addison Lee knew the risk it faced in portraying Mr Gascoigne as self-employed.

The IWGB has been supremely active in fighting for rights for those working in the gig economy. In another claim that it has supported against The Doctors Laboratory (see http://www.ukemploymenthub.com/gig-economy-couriers-delivering-emergency-blood-are-workers), it is asking the Central Employment Tribunal to make a finding that five couriers are in fact employees. Such status gives more rights, including the right not to be unfairly dismissed. The IWGB also awaits a decision by the Central Arbitration Committee over the employment status and union recognition case it brought against Deliveroo.

We also await the Government’s considerations of the Taylor Review (see http://www.ukemploymenthub.com/good-work-taylor-review-on-modern-working-practices). The evidence appears to be overwhelming that a contracting company should categorise any worker under its control and supervision with a new status which entitles them to holiday pay, sick pay and the minimum wage.

Mr Gascoigne’s status of worker entitles him to holiday pay and the national minimum wage. The employment tribunal will list a separate hearing to decide the amount of holiday pay owed to Mr Gascoigne.

Another triumph for cyclists

MAC to examine the role EU nationals play in the UK

The UK government has tasked the Migration Advisory Committee (MAC) to examine the role EU nationals play in the UK economy and society. MAC is the government’s independent advisers on migration.

Amber Rudd, the Home Secretary, has engaged the MAC. It will look into the British labour market, the overall role of migration in the wider economy and how a modern industrial strategy should align with the UK’s immigration system. The MAC will consult widely with businesses, employer organisations and EU citizens working in the UK.

The importance of this should not be underestimated, since free movement will end when we exit the EU. The government is working on plans to develop the flow of migration from Europe – see our blog post from 13 July (http://www.ukemploymenthub.com/the-rights-of-eu-citizens-in-the-uk). The UK and the European Commission had key discussions at the end of July. The next round of negotiations is scheduled for late August.

MAC to examine the role EU nationals play in the UK

The rights of EU citizens in the UK

The UK government’s policy paper setting out its offer to EU citizens and their families in the UK has been published. The offer is different depending on how long a person has been in the UK.

People who have been continuously living in the UK for five years will be able to apply to stay indefinitely by getting “settled status”. A settled status residence document will prove an individual’s permission to continue living and working in the UK. Those already with an EU permanent residence document will be required to apply. The application process should come online before the UK leaves the EU, and hopefully in 2018. The government has pledged to make the application process as streamlined and user-friendly as possible.

A “cut-off date” will be relevant for other people. The “cut-off date” will be the date after which EU citizens will no longer automatically be entitled to stay in the UK. The date is still to be negotiated, but may fall at any point between 29 March 2017, the date that Article 50 was triggered, and the date that the UK leaves the EU.

People who arrived in the UK before the cut-off date, but will not have been here for five years when the UK leaves the EU will be able to apply to stay temporarily until they have reached the five year threshold. They can then also apply for settled status as set out above.

People who arrive in the UK after the cut-off date will be able to apply for permission to remain after the UK leaves the EU, under the future immigration arrangements for EU citizens. We do not yet know what the arrangements will be. The government has said that there should be no expectation by this group of people that they will obtain settled status.

Please see our newsletter at the end of the month for more information on this development.

The rights of EU citizens in the UK

Status of EU citizens in the UK

The Home Office has sent a communication to interested parties following the government’s publication of a paper outlining its offer to EU citizens in the UK. The government has reiterated its position that no action need currently be taken. “The UK will remain a member of the EU until March 2019 and there will be no change to the rights and status of EU citizens living in the UK, nor UK nationals living in the EU, during this time. So, EU citizens do not need to apply for documentation confirming their status now.”

The government’s policy paper sets out that the government will be asking EU citizens to make an application to the Home Office for a residence document demonstrating their new settled status. It aims to make the process as “streamlined and user-friendly as possible for all individuals, including those who already hold a permanent residence document under current free movement rules”. It is expected the new application system will be up and running in 2018.

Status of EU citizens in the UK

EU family members’ rights

Family members ‎of EU nationals can join them in another member state if the EU national is exercising treaty rights. This may mean, for example, that they are studying or working.

The EU national may qualify for permanent residence after a qualifying period of time in the UK. Once an EU national gets permanent residence they may then apply for British citizenship. One would assume that this also means that they can enjoy family life in the UK.

Until now this has not been so, but the position may be about to change. Once an EU national becomes a British citizen, they are no longer entitled to rely on EU law and the rights derived from it for family members.‎ However, the Advocate-General has given an opinion in Lounes (C-165/16) that non-EU family members should be able to remain in the UK with their dual EU and British family member. The Advocate-General considered that the treatment of Mr Lounes’ wife (the dual national) should be no less favourable than before her naturalisation, or than would be granted to her if she were forced to move to another EU state to keep her family together.

While this is only the Advocate-General’s opinion, and is therefore only advisory and non-binding on the Court of Justice of the European Union, it is rare for the Advocate-General’s opinion to not be followed. The 15 judges at the court will consider the case in the summer.

This could have a far-reaching ‎impact on EU nationals who wish to obtain dual citizenship to be sure of their right to remain in the UK once the UK leaves the EU. Previously EU nationals have held off naturalising as British citizens for fear that their family members would not be able to remain in the UK. We will watch the progress of this case carefully and bring you an update as soon as there is more news.

EU family members’ rights

Adult dependent relatives – judicial review challenge

The Immigration Rules on visa applications ‎made by adult dependent relatives of UK citizens were changed in July 2012. An adult dependent relative may be a parent, grandparent or other adult dependent relative. There was concern at the time that the Home Office had tightened the Rules too much.

The Rules require that:

  • The applicant must because of age, illness or disability require long-term personal care to perform everyday tasks.
  • The applicant must be unable, even with the practical and financial help of the UK relative, to get the required care in the country where they are living. This must be because it is not available and there is no person in that country who can reasonably provide it, or it is not affordable.

Home Office statistics bore out that concern. Since the Home Office changed the Rules, the average number of successful applications each year may have reduced by at least 93 per cent.

BritCits, a campaign group, challenged the current requirements. It brought a judicial review application. It argued the Rules defeated the purpose of the law under which they were made. It also argued the Rules raised expectations without there being any real possibility of the Rules being met! Its third argument was that the Rules interfered with family life.

However, the Court of Appeal has dismissed the challenge brought by BritCits to the High Court’s dismissal of the judicial review application.

Applicants applying in this category will have to make applications in the knowledge that their success rate is exceptionally low, and, despite a challenge to the Immigration Rules, the Rules will remain as drafted. Applicants will continue to have to pull together as much evidence as they can to show they meet the requirements. Although the Rules require scrutiny of the available care in the adult dependent relative’s home country, the Home Office will consider whether the care is reasonable for the applicant and of the required level for the applicant. This can include the psychological and emotional needs of elderly parents, for example. Such an approach could mean the difference in the outcome of an application for an adult dependent relative.

If BritCits pursues its challenge to the Supreme Court we will of course keep you informed.

Adult dependent relatives – judicial review challenge

EEA – permanent residence applications

Applicants use Form EEA (PR) to apply for, replace or renew a document certifying permanent residence or a permanent residence card.

On 12 April 2017 the Home Office updated its guidance notes setting out information on what an applicant should send with their application. See https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/608088/Form-EEA-PR-guidance-notes-v3.pdf. The guidance notes now include a table of examples of people in different circumstances. This acts as a helpful guide for applicants thinking about the evidence they might need to provide specific to their own circumstances.

The documents and evidence sent must be originals. The Home Office makes an exception for online applicants who have their passports verified, copied and sent to the Home Office by a local authority participating in the European Passport Return Service. Official English translations provided by a qualified translator must be sent with all documents not in English or Welsh.

EEA – permanent residence applications

Matthew Taylor’s report on the gig economy – emergent themes

Matthew Taylor, former head of Blair’s Number 10 Policy Unit, is due to publish a report on the gig economy this summer. A number of themes have emerged from his interviews and discussions with the press to date.

His report will look at the following issues:

  • Security, pay and rights
  • Progression and training
  • Balance of rights and responsibility
  • Representation
  • Opportunities for under-represented groups
  • New business models

The report will emphasise that it is not just quantity of work that matters but also the quality of work. Mr Taylor wants to ensure there are greater opportunities for progression and fulfilment in the self-employed and worker economy. He wants to strengthen employee voice in the workplace.

His research will recognise that employers want clearer rules on how to determine self-employed, worker and employee status. To that end, it is likely to foreground the idea of the “dependent contractor” (a term currently used in Canadian law) as an indicator of worker status.

His investigations look into a diversity of self-employment roles, and will take account of differences between, for example, the construction and healthcare industries.

Finally the report will also disclose the extent to which tax treatment and social security rights are a big influence on employment trends. We can assume that Matthew Taylor saw the now cancelled tax reforms to self-employed workers as a step in the right direction. Although he cannot make recommendations on tax, he is likely to want to nudge tax treatment in an employee-friendly direction as well as recommend a strengthening of pension entitlements for those working in the gig economy.

Matthew Taylor’s report on the gig economy – emergent themes

Increase in limits

This week new limits applying to certain awards of employment tribunals, and other amounts payable under employment legislation, have been increased.

The increases apply where the event giving rise to the entitlement to compensation or other payments occurred on or after 6 April 2017. Limits previously in force are preserved in relation to cases where the relevant event was before 6 April 2017.

Key new relevant limits are as follows:

  • Minimum basic award in cases where a dismissal is unfair by virtue of health and safety, employee representative, trade union, or occupational pension trustee reasons: Old limit – £5,853; New limit – £5,970
  • Limit on amount of guarantee payment payable to an employee in respect of any day: Old limit – £26.00; New limit – £27.00
  • Limit on amount of compensatory award for unfair dismissal: Old limit – £78,962; New limit – £80,541
  • Maximum amount of “a week’s pay” for the purpose of calculating a redundancy payment or for various awards including the basic or additional award of compensation for unfair dismissal: Old limit – £479; New limit – £489
Increase in limits

Worker status – Pimlico Plumbers case

Pimlico Plumbers engaged Mr Smith as a plumber for around five and a half years. Four months after he suffered a heart attack, Pimlico brought the engagement to an end. Mr Smith issued proceedings in the employment tribunal for unfair dismissal, wrongful dismissal, entitlement to pay during medical suspension, holiday pay, unlawful deductions from wages and disability discrimination. The tribunal listed the case for a preliminary hearing to decide whether Mr Smith was an employee and/or a worker. Mr Smith would require this status to continue the various claims.

In terms of contractual documentation between the parties, there was an agreement and a company manual. These provided that Mr Smith was an independent contractor and was under no obligation to accept work from Pimlico, and Pimlico was not obliged to offer him any work. Mr Smith was subject to restrictive covenants, had to drive a Pimlico branded van and had to wear a Pimlico uniform. Further, he had to provide his own materials and tools. He also bore a significant proportion of the commercial risk – if a customer didn’t pay, Mr Smith would not be paid. Mr Smith was registered for VAT and submitted invoices to Pimlico and filed tax returns as a self-employed contractor. While there was no express right of substitution in the contractual documentation, Mr Smith could swap assignments with his colleagues.

At the preliminary hearing, the tribunal held that Mr Smith did not have employment status but did have worker status. Both parties applied to the Employment Appeal Tribunal (EAT). The EAT rejected both appeals. Only Pimlico raised a further appeal to the Court of Appeal to dispute that Mr Smith was a worker.

The Court of Appeal dismissed the appeal and found Mr Smith was a worker. The judges provided a useful analysis of the situation. They considered the issue of personal service. They found the ability to swap assignments represented only an informal concession to the requirement to provide personal service. A limited ability to provide a substitute is not usually inconsistent with an alleged requirement to provide personal service. They then looked at whether Pimlico was a client or customer of Mr Smith. The court held the tribunal had been entitled to find that the degree of control exercised by Pimlico (alongside a minimum hours preference) was inconsistent with Pimlico being a client or customer of a business run by Mr Smith. The fact that the contractual documentation contained restrictive covenants also pointed to this finding.

The case follows hot on the heels of the Uber and CitySprint cases, and will no doubt add to the Taylor review into modern working practices. While the Pimlico case is again a fact-sensitive case, the judgment helps in giving a further practical application of the worker status statutory definition. The case will now return to the employment tribunal to decide Mr Smith’s claims that hinged on his status of worker, i.e. disability discrimination, failure to pay holiday pay, and unlawful deductions from wages. Should Pimlico appeal the decision to the Supreme Court, we will update you on our blog.

Worker status – Pimlico Plumbers case