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Monitoring employees’ communications

The European Court of Human Rights has ruled that the Claimant's Article 8 right to privacy was breached when his employers investigated his private messages. This is notwithstanding the fact that the employer's policies clearly set out that personal use of its computer systems was prohibited.
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Monitoring employees’ communications

CitySprint courier delivered employee status by employment tribunal

In another case focusing on the gig economy, the London Central Employment Tribunal has ruled that a CitySprint bike courier was a worker under the Employment Rights Act 1996.

In Dewhurst v CitySprint UK Ltd, the tribunal decided that Maggie Dewhurst was not self-employed and was instead a worker, despite her contract saying the opposite. Now Ms Dewhurst will receive employee rights given to other workers, such as holiday pay and sick pay. CitySprint will also need to pay Ms Dewhurst the National Minimum Wage and National Living Wage. While this decision only affects one employee directly, many employees are likely to make similar claims following the decision.

In the decision, the tribunal focused on what was happening in reality and not the wording of the contract (actually entitled a “Confirmation of Tender to Supply Courier Services to CitySprint Ltd”). The tribunal was critical of CitySprint’s use of confusing wording and a tick box recruitment form for the terms of the employment.

The tribunal also considered a number of factors regarding Ms Dewhurst’s normal day, demonstrating that she was integral to the business and had no control of her own working day.

For example:

  • starting her day by logging into the company tracking system to receive instructions and only logging out when she got home;
  • wearing a uniform and following instructions to smile;
  • the manner in which she was permitted to send a substitute to complete work, which was effectively no different from swapping roles with a colleague; and
  • CitySprint calculating the payments due to her and paying her in arrears, rather than self-billing via invoices.

CitySprint has called on the government to provide better support and help for businesses across the UK. The government is due to report in the spring on modern working practices. Uber, which received a similar ruling in October 2016, intends to appeal the decision. With many courier companies likely to be in a similar position, it remains to be seen what will happen next with the gig economy.

CitySprint courier delivered employee status by employment tribunal

Criminal record check for Tier 2 UK migrants

From 6 April 2017 those applying to come to the UK to undertake certain jobs, along with their adult dependants, will be subject to the requirement under the Immigration Rules to produce a criminal record certificate. The certificate must be produced from any country in which they have been resident for 12 months or more, consecutively or cumulatively, in the previous 10 years, aged 18 or over.

From January 2017, sponsors must start informing prospective employees at the point they assign their Certificate of Sponsorship that they may become subject to this requirement by the time they make their application. This will enable them to begin seeking certificates where needed at the earliest opportunity, and to lodge a complete application for entry clearance sooner.

Affected job titles are:

  • Health services and public health managers and directors
  • Social services managers and directors
  • Medical practitioners
  • Psychologists
  • Pharmacists
  • Ophthalmic opticians
  • Dental practitioners
  • Medical radiographers
  • Podiatrists
  • Health professionals not elsewhere classified
  • Physiotherapists
  • Occupational therapists
  • Speech and language therapists
  • Therapy professionals not elsewhere classified
  • Nurses
  • Midwives
  • Further education teaching professionals
  • Secondary education teaching professionals
  • Primary and nursery education teaching professionals
  • Special needs education teaching professionals
  • Senior professionals of educational establishments
  • Education advisers and school inspectors
  • Teaching and other educational professionals not elsewhere classified
  • Social workers
  • Probation officers
  • Welfare professionals not elsewhere classified.

The requirement to produce a criminal record certificate already applies to those applying under Tier 1 (Entrepreneur) or Tier 1 (Investor) and any adult dependant relative of the main applicant in either of these categories.

Criminal record check for Tier 2 UK migrants

Insight: UK Employment Law Round-up – December 2016

Employment Round Up THUMBNAIL Welcome to the December edition of our employment law round-up. In this edition, we couldn’t fail to give you an update on the most important piece of constitutional litigation of our time, which has been heard by the Supreme Court on Article 50. Other festive treats include a summary of recent restrictive covenants cases (first published on HR-Inform) and unfair dismissal litigation. We have also given you our take on calculating rest breaks for workers, and the dangers of using employees’ personal data unlawfully.

Read the full newsletter here.

Insight: UK Employment Law Round-up – December 2016

Uber and the Gig Economy – is the law keeping up?

After a preliminary hearing spanning seven days (including reading the five-volume bundle and time for deliberation), an Employment Tribunal has handed down its much anticipated ruling that Uber drivers are workers rather than independent contractors. The drivers can, therefore, benefit from statutory protections, such as 5.6 weeks’ paid annual leave each year, a maximum 48 hour average working week (in the absence of an opt-out), rest breaks, the National Minimum Wage, potentially the National Living Wage, and the protection of the whistleblowing legislation.

The Tribunal examined in detail Uber’s business model but rejected Uber’s assertion that it is a provider of technology services rather than transportation services. Passengers can order a taxi via Uber’s smartphone app and Uber’s drivers can then decide (with the extent of the autonomy of such decision one of the factors questioned in this case) whether to drive that passenger to their requested destination and, if they do, the route to be taken. The passenger pays the fare to Uber by credit or debit card, Uber takes a 25 per cent service fee, and pays the balance of fares to the driver on a weekly basis.

The Tribunal looked at various aspects of the arrangement as it operates in reality, rather than as described in Uber’s contracts, to determine whether the drivers are workers as opposed to truly independent contractors. For example, the Tribunal noted the fact that, if a driver declines three trips in a row whilst logged on to the app and so ostensibly available to work, he will be forcibly logged out of the app for 10 minutes. The Tribunal also took note of the fact that Uber prohibits drivers from agreeing with the passenger a fare which is higher than that set by Uber and that Uber usually bears the cost of any cleaning necessitated by a passenger soiling a vehicle.

In summary, the Tribunal concluded that Uber is a taxi service and employs drivers to provide that service in a way which, in a number of key respects, Uber controls. Consequently, the Tribunal held that each of the drivers in this case fell squarely within the statutory definition of a worker as an individual who works under a contract to personally perform services for another party to the contract (Uber) which is not a customer of a business undertaking carried on by the individual. However, we note that this contract did not actually exist (in the sense that no such express agreement had been put in place) but had to be inferred by the Tribunal from the facts as found by it. It may be that the scope for doing so will be one of the grounds on which Uber appeals against the Tribunal’s judgment.

The Tribunal went on to find that, whilst the drivers are under no obligation to switch on the app through which their instructions are received and there is no prohibition against dormant drivers, once the app is switched on, the driver is in the territory where he is licensed to operate and he is able and willing to accept assignments, he is then on working time until one of those conditions ceases to apply.

For the purposes of the National Minimum Wage Regulations, the Tribunal stated that the work carried out by drivers does not constitute “time work” or “output work”, as the driver’s entitlement to pay is not limited to when he is carrying a passenger and does not depend on him completing a particular number of trips. Accordingly, the work was classified as “unmeasured work”, so it is likely that the relevant rate of pay will be calculated by reference to the periods of time when the driver is logged on to the app in his licensed territory and ready to accept passengers, rather than just the time spent driving passengers to their destinations.

This decision is extremely fact specific. Furthermore, Uber has already announced its intention to appeal against it. The outcome is likely to have wide-ranging implications for the concept of the gig economy, the proponents of which claim that it benefits individuals who want the flexibility to work how, when and for whoever they please, in an increasingly interconnected and digitally virtual employment sphere.

The employment landscape is changing rapidly and the challenges to the existing statutory framework presented by the Uber case could be seen as demonstrating that the law also needs to change in order to keep up. In support of its decision, the Tribunal cited an earlier judgment which identified the underlying policy behind the definition of “worker” as the need to extend statutory protection to individuals who are vulnerable to exploitation in the same way as employees. Whilst this is clearly not a new issue, as is evidenced by some of the previous case law referred to in the Uber judgment, perhaps in light of the rise of the gig economy, such policy needs to change and the law, therefore, needs to change with it.

Uber and the Gig Economy – is the law keeping up?

Insight: UK Employment Law Round-up – October 2016

UK Employment Law Round-up In this issue we look at recent case law decisions which have provided a useful reminder of the position when dealing with contracts tainted by illegality and taking prior disciplinary warnings into account. We also bring you up to date with the latest thoughts on calculating holiday pay, and the scope of ACAS Early Conciliation certificates. We review the new judicial assessment procedure in the employment tribunal, along with proposals to inspect corporate governance and to ask employers to disclose employed foreign nationals.

Read the full newsletter here.

Insight: UK Employment Law Round-up – October 2016

I will drink to that

In 2015, brewing giant Greene King took over ownership of the Spirit Pub Company (Spirit), including its 16,000 workers, the majority of whom were, and are, engaged under zero hours contracts.

A zero hours contract is a contract for casual working, under which the employer does not guarantee to provide the worker with any work and pays the worker only for work actually carried out. The worker is expected to be available for work when or if called on by the employer although the term can be used to describe situations both where the worker is free to accept or refuse work when it is offered, and where the worker is not given such a right of refusal. Whether or not the person engaged under a zero hours contract is, in fact, a worker or an employee will depend upon the wording of the contract but also, and more importantly, how the relationship actually operates in practice.

At the time of the purchase of Spirit, Greene King had already moved all of its staff away from zero hours contracts. It now intends to do the same in relation to the Spirit staff. This means that thousands of staff at household names such as Chef & Brewer and Wacky Warehouse will, over the course of the next year, be guaranteed a minimum number of hours’ work. This follows on from similar announcements across various sectors, with the Everyman cinema chain also confirming that it will be following the example of not only Greene King but also Everyman’s rival, Curzon Cinemas, and retailer Sports Direct.

Despite ongoing criticism of the use of zero hours contracts, they continue, however, to be widely used, particularly in the hospitality sector. In fact, data published by the Office of National Statistics (ONS) on 8 September 2016 suggests that zero hours contracts are now more widely used than ever. 2.9% of the people in employment that the ONS surveyed consider themselves to be engaged under a zero hours contract, with this percentage increasing steadily since 2010.

This means that 903,000 people are currently engaged under zero hours contracts and this is not always seen as a bad thing. The chairman of pub company JD Wetherspoon has said that when offered a choice between a zero hours contract and a contract guaranteeing certain working hours, two-thirds of his staff opted to move off zero hours contracts. However, in stark contrast, McDonalds has stated that when workers in three of its north-west stores were given such an option, over 80% of the employees opted to stay on their existing flexible, zero hours contracts. It continues to be the case, it seems, that whilst zero hours contracts may give rise to uncertainty and exploitation, they may also offer the flexibility which is desirable for certain employers and employees.

I will drink to that

Insight: UK Employment Law Round-up – May 2016

During our Annual Update seminar on 27 April 2016, we discussed some of the legislative changes that employers should look out for over the next 12 months. One of these was the Trade Union Bill having now received Royal Assent.

UK Employment Newsletter 3DCoverIn this issue we also look at the EU’s Trade Secrets Directive and how this could impact on whistleblowers in the UK, as well as the Government’s call for evidence on the use of non-compete clauses.

We will also analyse cases which look at whether employees have a right to privacy in the workplace regarding email communications, whether terms contained in an employee handbook can be incorporated within an employee’s contract of employment and how tribunals should approach the remedy of re-engagement.

Read the full newsletter here.

Insight: UK Employment Law Round-up – May 2016

Changes to contracts – worth the paper they are written on?

Contracts often state that any changes must be made in writing and agreed by all the parties. These kinds of clauses are often included in employment contracts. However, there have been conflicting decisions on whether they actually work.

In Globe Motors Inc v TRW Lucas Variety Electric Steering Ltd the Court of Appeal recently commented that they do not. Even with such a clause included, it is still possible to amend a contract verbally or even by conduct. This means an employer cannot rely on such a clause in an employment contract to argue that an alleged change has not been agreed with an employee. This will make arguments over agreed contractual terms more likely and the judge accepted that it may cause evidential problems. However, an oral variation will only be found where it can be proven to have been agreed on the balance of probabilities.

Despite this decision, we still recommend that employers include such a clause in their employment contracts. This encourages good practice and may pre-empt allegations from employees that changes have been made. Employers should also remember to document agreed changes to contracts clearly and retain signed copies on an employee’s personnel file.

Changes to contracts – worth the paper they are written on?

Data protection: consent and the employment contract

The European Parliament has now passed the new General Data Protection Regulation. This will come into effect in 2018. The Regulation does make some changes to the law currently implemented by the Data Protection Act, which employers need to be aware of. In particular, the Regulation sets out tighter requirements for obtaining consent from employees to processing their personal data.

The current law requires that this consent must be “freely given, informed, and specific”. Under the new Regulation it must also be “explicit”. In addition, it states that where consent is given in a written document which also concerns other matters, it must be presented in a manner which is clearly distinguishable from those other matters.

This will have implications for employers who seek to obtain consent to data processing in the employment contract, as is often the case. Applying the Regulation, this would not be sufficient. This can probably be dealt with by asking staff to sign a separate document consenting to the processing of their data (in the same way that Working Time Regulation opt-outs are usually signed now). Employers will need to be careful of the wording of the consent forms to ensure that consent is freely given. They should also make sure that employees know exactly what they are consenting to.

Data protection: consent and the employment contract