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Labour of love: foster parents are not workers under the Working Time Directive

In a case referred by the Romanian courts, the ECJ has held that foster parents are not workers for the purposes of the Working Time Directive. This makes it more likely that cases currently pending before employment tribunals in the UK on foster parents' entitlement to holiday pay are likely to be unsuccessful.
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Labour of love: foster parents are not workers under the Working Time Directive

Addison Lee drivers found to be workers: what can we learn from the latest case on worker status?

Barely a week goes by without worker status finding its way back into the headlines. The EAT this week upheld a tribunal's decision that three private hire drivers engaged by Addison Lee, which offers various transport services, are workers. The EAT confirmed the tribunal's ability to look beyond the contract in place to the reality of the working arrangements and endorsed the adoption of a "realistic and worldly-wise" approach.
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Addison Lee drivers found to be workers: what can we learn from the latest case on worker status?

Phase 2 of the EU Settlement Scheme trial set to commence soon

With the UK leaving the EU on 29 March 2019, the EU Settlement Scheme provides the basis for resident EU citizens and their family members to obtain the immigration status they will need to remain in the UK. It is anticipated that EU citizens and their family members who are resident in the UK or who move to the UK before 31 December 2020 will have to submit an application by 30 June 2021. Under the scheme, applicants may be granted either settled status if they have been in the UK for five years (indefinite leave to remain) or pre-settled status (limited leave to remain) if they have not reached the five-year mark at the time of making their application.

Phase 1 of the EU Settlement Scheme trial

The Home Office conducted an initial phase testing from 28 August to 17 October, in which EU nationals from 12 NHS trusts in the north-west of England, as well as students and staff from three Liverpool universities, were invited to apply for residence documentation via the EU Settlement Scheme.

1,053 applications were received. From those, 924 decisions were made and sent out to applicants by 30 October. Based on automated checks made against HMRC data, 85 per cent of those 924 applicants did not have to provide additional evidence. The other 15 per cent had to provide additional evidence to demonstrate their residence.

Phase 2 and next steps

The second phase of private testing will commence on 1 November 2018, and will cover a much wider group of potential applicants, including those with more complex cases who may not have a complete set of government data. From 15 November students and staff at UK universities will be able to apply, and from 29 November the testing pool widens again with inclusion of workers in health and social care.

Implications for employers

With the success of Phase 1 and the announcement of Phase 2, employers should ensure their employees have access to the most up-to-date information, and understand the key elements of the EU Settlement Scheme.

Phase 2 of the EU Settlement Scheme trial set to commence soon

What does the reform of IR35 mean for your business?

In his 2018 budget speech, the chancellor announced the widely expected changes to the rules on off-payroll working (known as IR35) in the private sector. The move follows reform to the off-payroll working rules in the public sector in April 2017.

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What does the reform of IR35 mean for your business?

Employee status and agency workers: The nature of the work is the key consideration

An employee on a temporary zero hours contract should be classed as an agency worker, the Employment Appeal Tribunal found in Brooknight Guarding Limited v. Matei.

Background

Brooknight Guarding Limited employed Mr Matei as a security guard on a zero hours contract for 21 months. He worked mostly for Mitie Security Ltd, although not exclusively, and Brooknight could assign him to different clients. Mr Matei claimed he should be classed as an agency worker under the Agency Workers Regulations 2010 (Regulation 3(1)). As a result, he said he should be entitled to the same basic working conditions as Mitie staff after 12 weeks of service. The ET found Brooknight was using Mr Matei as a ‘cover security guard’, rather than an employee on a permanent basis, and so the ET classed him as an agency worker. Brooknight appealed the decision to the EAT on the basis that the employee could work on a zero hours contract and still be a permanent employee of Mitie.

Decision

The EAT agreed with the Tribunal’s decision and dismissed Brooknight’s appeal. The Tribunal had considered the nature of Mr Matei’s contract and short period of employment, but these factors were not the determining factors; the focus was on the nature of the work and whether it was temporary. Brooknight’s own correspondence with Mr Matei itself suggested the relationship was temporary. The Tribunal was therefore right to conclude that Mr Matei was an agency worker and entitled to the same terms and conditions as those working directly for Mitie.

Conclusion

The decision informs us that the key issue a tribunal will consider when determining agency worker status is the nature of the work carried out and whether the work is permanent or temporary. The EAT considered the nature of Mr Matei’s contract and relatively short period of employment, but they were not determinative. Employment businesses will need to be mindful that an agency worker on a zero hours contract can still gain rights under the 2010 Regulations after 12 weeks’ service, if the nature of the work is temporary. End users will also have to take note, since they can be held liable for any breach of week 12 rights under the Agency Workers Regulations.

Employee status and agency workers: The nature of the work is the key consideration

Supreme Court dismisses the appeal in Pimlico Plumbers

The Supreme Court handed down its judgment yesterday in the case of Pimlico Plumbers Ltd and another v Gary Smith [2018] UKSC 29 confirming (as the Employment Appeal Tribunal and the Court of Appeal had) that Mr Smith was a worker within the meaning of the Employment Rights Act and not, as Pimlico Plumbers contended, self-employed.
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Supreme Court dismisses the appeal in Pimlico Plumbers

The gig economy – focus on the future

As the gig economy has grown and developed, so too has the law relating to so-called "gig workers" and how their employment status should be regarded. As we have reported previously, in November last year, the Employment Appeal Tribunal (EAT) rejected app-based taxi firm Uber's appeal against the Employment Tribunal's (ET) earlier decision that its drivers should be categorised as workers rather than self-employed contractors.
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The gig economy – focus on the future

Taylor Review – update

The House of Commons Work and Pensions and Business, Energy and Industrial Strategy Committees (the Committees) made recommendations in November 2017 for addressing the issues raised in the Taylor Review. These included:
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Taylor Review – update

King v. Sash Windows judgment leaves employers vulnerable to backdated holiday claims

In King v. Sash Windows, the European Court of Justice (ECJ) has held that anyone deemed to have "worker" status is entitled to carry over paid annual holiday in circumstances where they have not had the opportunity to take it.
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King v. Sash Windows judgment leaves employers vulnerable to backdated holiday claims

Uber appeals to Supreme Court

Uber presented its application to the Supreme Court to appeal the Employment Appeal Tribunal (EAT) decision that its drivers are workers and should have associated rights.
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Uber appeals to Supreme Court