Legislation has been laid before Parliament to extend the rights currently in place to provide further health and safety protection for workers.  The amendments will provide clarity to businesses and workers.  Changes are due to take effect in 31 May 2021.

The Supreme Court has unanimously upheld an employment tribunal decision that Uber drivers are workers.   In particular, it was held that worker status was a question of statutory interpretation, rather than contractual interpretation.  Therefore, the written documentation between Uber and the drivers was not the correct starting point.  Instead, it was necessary to consider the purpose of the relevant legislation, which was to protect vulnerable individuals in a position of subordination and dependence in relation to another person who controls their work. The greater the degree of control, the more likely it was that the individual was a worker.

Interestingly, applying that analysis to the facts in this case found that the drivers were workers. Five elements of the decision emphasised were:

• Uber dictated the fare charged by the drivers, which determined their pay.
• Uber imposed the contractual terms on which the drivers provided their services.
• Uber constrained the drivers’ choice to accept or decline rides.
• Uber exercised significant control over the way in which drivers provided services.
• Uber restricted communication between driver and passenger.

Taking these factors together, it was clear that the services provided by the drivers were very tightly defined and controlled by Uber. This meant that the drivers were limited in their ability to profit from their work: the only way they could increase their earnings was by working longer hours while constantly meeting Uber’s performance measures.

In addition, it was also upheld that the drivers’ working time was not limited to the time spent driving passengers to their destinations, but also included any period when the driver was logged in to the Uber app, within the territory in which they were licenced to operate, and ready and willing to accept rides. All such time also counted as “unmeasured work” for national minimum wage purposes.

Following the landmark ruling, Uber has announced that from 17 March 2021 all of its drivers, irrespective of their age, will receive at least the National Living Wage (NLW), after expenses, once they have accepted a trip request.  Although, no mention has been made of compensation for past entitlements and drivers will not be paid at this rate when they are not carrying out trips.

All drivers will receive paid holiday time based on 12.07% of their earnings, paid on a fortnightly basis, as well as free insurance to cover sickness, injury and parental payments. This insurance cover was introduced in 2018. Uber has confirmed that drivers will still be able to choose when and where they drive.

However, it is a common belief that drivers should receive a minimum rate of pay from the moment they log onto the app, not only when they are carrying out trips.

On 11 March 2021, the Home Office announced the launch of its new registry for slavery statements and the addition of the government’s own modern slavery statement to the registry. It’s a requirement for large businesses to produce a statement each year setting out the steps they have taken to ensure that their business and supply chains are slavery free, or a statement that they have taken no steps to do this.

The intention following the launch of the registry is that the online registry will make it easier for organisations to show they are complying with the Modern Slavery Act 2015 and allow any member of the public to search for statements. Currently, the registry is voluntary, but all organisations are strongly encouraged to submit their statements online. In due course it will be mandatory for organisations which are legally required to produce a statement to submit that statement to the registry, as part of the proposed changes to strengthen the reporting requirements of the MSA. 

The UK government has decided to revoke the Restriction of Public Sector Exit Payments Regulations 2020 which came into force on 4 November 2020.  Following an extensive review of the application of the £95,000 cap on public sector exit payments introduced by the regulations, the government concluded that the cap may have had unintended consequences.

The 30% Club has published its latest monthly statistics on female boardroom representation  revealing that as of February 2021 in the FTSE 350, there are no all-male boards left and women occupy a significant total of 34% of seats.

This is the second disappearance of all-male boards in the history of the London Stock Exchange. The first occurred in May 2020 but lasted only a month.  

A recent case has decided that an NHS Trust Development Authority did not discriminate against a Christian non-executive director, on religious grounds when it decided not to renew his term after he spoke out in public against homosexuality and same-sex couple adoption. Mr Page gave several interviews to the media making it clear that he thought that homosexual activity was wrong and that he did not agree with same-sex marriage.

The court found that there was no direct discrimination because Mr Page was removed for repeatedly speaking to the media without first informing the Trust, despite repeated requests to seek permission, and not because of his religious belief. In addition, there had been no indirect discrimination because however a provision, criterion or practice may have been formulated.  There had been no victimisation because the protected acts relied on by Mr Page had not been the reason for the action taken against him.

In concluding remarks, the court observed that there are circumstances in which it is right to expect Christians (and those of other faiths) who work for an institution, especially if they hold a high-profile position, to accept some limitations on how they express their beliefs in public on matters of particular sensitivity. Whether such limitations are justified in a particular case can only be judged by a careful assessment of all the relevant circumstances in order to strike a fair balance between the rights of the individual and the legitimate interests of the institution they work for.

A recent report has been published by the Mental Health and Income Commission which is a collaboration of businesses, trade unions and charities led by the Money and Mental Health Policy Institute, revealing that the UK’s current mental health income gap is £8,400. The Commission’s report, Closing the gap, also found that one in five people with mental health problems in the UK have faced workplace discrimination.

In response, the Commission has now called on employers and the government to introduce measures and systemic reforms to reduce the pay gap and improve working conditions for workers with mental health problems. These include the right to flexible working for all employees during the COVID-19 pandemic, an increase in Statutory Sick Pay and a broadening of its eligibility criteria, as well as introducing a legal pay gap reporting requirement for larger companies to reveal the inequalities and discrimination faced by employees with mental health problems.

Notably, three in ten people with mental health problems experienced an income reduction during the pandemic. Generally, the Commission found that one in five respondents with mental health problems said that they had suffered workplace discrimination due to their condition, including being passed over for promotion or being made redundant and more than two-thirds had their requests for reasonable adjustments rejected or only partly met.

In a bid to combat nationwide lack of knowledge about workers’ rights, on 22 January 2021, the Welsh Government announced that it will be collaborating with a range of partners including Acas, Citizens Advice and the Wales TUC to further this. The aim of the collaboration is to raise awareness regarding the range of expert support available to workers and employers, highlighting the importance of employers, workers and trade unions working together to improve the workplace.

The launch of the scheme follows the publication of statistics by the Wales TUC, which revealed that one in ten workers in Wales do not have a good understanding of their rights. In addition, the TUC survey identified key areas of concern including fair pay, a concern for 41% of workers, health and safety, a concern for 30% of workers, and flexibility, a concern for 27% of workers. Worryingly, 20% of black, Asian and ethnic minority workers did not believe that their employer understood or respected their employment rights, compared with 14% of white respondents.

On 27 January 2021, Kwasi Kwarteng MP, the Business Secretary, announced that a post-Brexit review of workers’ rights due to be carried out by the Department for Business, Energy and Industrial Strategy (BEIS) is cancelled. The review, which was expected to consider proposals including the termination of the 48-hour maximum working week and amendments to rest break rules, had garnered much criticism in the past few weeks, particularly from the Labour Party. Indeed, Kwarteng’s confirmation follows multiple, previous statements about the government’s commitment to maintaining workers’ rights despite its plans to review them and to consult with business leaders.

On 14 January 2021, an open letter to employers calling on them to support the victims of domestic abuse was published by the Government.  BEIS has also now published a report setting out the findings from its review into how victims of domestic abuse can be supported at work and the actions the government will take as a result. The three main themes of the report are:

• Raising awareness – considers the need for employers to spot the signs of domestic abuse, how they can respond safely and effectively to a disclosure from a member of staff and how they can support staff who need to access specialist services.
• Providing support through the development of best practice – suggests that employers should, where possible, have a policy on domestic abuse. It also recommends practical steps that employers can take to support victims of domestic abuse, training for line managers and HR, a proactive role on the part of senior leadership and the use of Domestic Abuse Champions.

Following publication of the report, Acas has further announced new advice for employers on how to support staff that are experiencing domestic abuse. Acas suggested that the first step for employers at this time was to provide a safe work space for those at risk of domestic abuse. It also highlighted practical steps such as introducing a policy and providing training to managers.

The CIPD has launched a new campaign calling for the right to request flexible working to be a day-one right for all employees and for employers to advertise jobs as flexible. Recent research found that 50% of employees surveyed did not have flexible working arrangements, such as flexitime and part-time working.  Interestingly, 20% of respondents revealed that their organisation did not offer any flexible working arrangements.

While the survey also saw a huge increase in working from home amid the COVID-19 pandemic, CIPD noted that more than two in five employees were not able to work from home, largely due to the nature of their employment.

Significantly, the CIPD’s proposal echoes calls previously made by the Equality and Human Rights Commission and the TUC for the right to request flexible working to be a day-one right.

Recently, the Employment Appeal Tribunal has decided in a particular case that an employer was not entitled to dismiss an employee who was conducting surveillance in the workplace, noting that the employer had failed to conduct a balancing exercise between the right to privacy and the employee’s desire to protect his confidential information.  The employee had set up a camera to monitor whether anyone had entered his office to access his computer.  However, the case was remitted to a fresh tribunal to consider whether it was fair to dismiss the employee on the basis he failed to follow a management instruction.

The Employment Appeal Tribunal also decided in this case that, if an employer is conducting disciplinary investigations into multiple employees whose cases are related, there is no need for the investigation of the employees to be “sealed off” from one another.  It further highlighted the need to ensure evidence is adduced from relevant witnesses, suggesting the employer’s failure to do so in this case may have led to the tribunal preferring the employee’s evidence over that of the employer.

TUC has published a recent report revealing that approximately 7.5 million employees, being 25% of workers, have been employed for less than two year, therefore, not been employed long enough to have qualified for unfair dismissal protection.

In particular, the study identified that those working in the sectors most adversely impacted by COVID-19, hospitality and retail, were the most vulnerable, with 45% of hospitality staff and 32% of retail workers not yet attaining unfair dismissal rights.  Similarly, the TUC’s survey also reported that BME and young workers were also at risk, as 33% of BME workers and 56% of 20-24-year-olds do not yet have unfair dismissal rights.

Pending the government’s pledge to introduce a new employment bill to improve employee protection at work, TUC is now calling for the government to implement a day-one right for unfair dismissal protection.  It has further proposed a ban on zero-hours contracts, and to give workers the right to request flexible working from the first day in a job.

A recent case has decided it is not simply enough to train staff but any training must be refreshed.  Training that was 20 months old was found to be “stale” and the employer had to pay compensation of £5k  https://www.gov.uk/employment-appeal-tribunal-decisions/allay-uk-ltd-v-mr-s-gehlen-ukeat-slash-0031-slash-20-slash-at

Contact us now to arrange equality and diversity training for your workforce – we can deliver live training remotely or produce e-learning modules for you to share with your workforce to be done at a time to suit the business and re-used for new staff.  Our training is interactive, in clear language and delivered by experienced employment lawyers bringing with them their wealth of knowledge and experience of dealing with harassment cases. 

For more information please contact [email protected]