Almost two years ago, I mentioned the English Court of Appeal’s decision in Uber BV & Ors v Aslam & Ors [2018] EWCA Civ 2748 on appeal from UKEAT/0056/17/DA), where individuals working as taxi drivers for Uber were to be classified as workers not self-employed individuals.
This decision was a significant defeat for Uber, but it was hardly going to be the last word in the story and so it proved. An appeal to the U.K. Supreme Court was always going to be on the cards and, on Friday 19 February, the Justices issued their judgement (see Uber BV & Ors v Aslam & Ors [2021] UKSC 5).
The Supreme Court was asked to consider two questions by Uber:
Whether the drivers (the Respondents) were “workers” providing personal services to the Second Appellant.
If the Respondents were “workers”, what periods constituted their “working time”.
The result? Uber drivers are workers not self-employed individuals. Essentially, the Supreme Court has approved the earlier decision of the English Court of Appeal.
Although Uber drivers won’t acquire full employment status, this decision is, nonetheless, highly significant. It will, for example, mean that Uber drivers will be protected under the National Minimum Wage legislation and the Working Time Regulations.
Paragraphs 94 to 102 of the Supreme Court’s decision are really instructive. The Court found the following matters extremely significant:
The rates of pay for taxi drivers was set solely by Uber
The contractual terms were dictated solely by Uber
Uber constrained or restricted the ability of drivers to decline jobs
Uber strictly vetted the type of vehicle which drivers could use for jobs and the technology used by drivers was “wholly owned” by Uber
The communication between a driver and a passenger was severely restricted by Uber in order “to prevent drivers from establishing any relationship with a passenger capable of extending beyond an individual ride.”
As Lord Leggatt (who delivered the unanimous judgement of the Court) stated at paragraph 102:
“Taking these factors together, it can be seen that the transportation service performed by drivers and offered to passengers through the Uber app is very tightly defined and controlled by Uber. Furthermore, it is designed and organised in such a way as to provide a standardised service to passengers in which drivers are perceived as substantially interchangeable and from which Uber, rather than individual drivers, obtains the benefit of customer loyalty and goodwill. From the drivers’ point of view, the same factors – in particular, the inability to offer a distinctive service or to set their own prices and Uber’s control over all aspects of their interaction with passengers – mean that they have little or no ability to improve their economic position through professional or entrepreneurial skill. In practice the only way in which they can increase their earnings is by working longer hours while constantly meeting Uber’s measures of performance.”
Worker is a term which is widely used in EU equality and employment law, but a single definition does not exist. As a result of the U.K.‘s long relationship with the EU, the term has entered the British legal systems and, in the interim period, Brexit will not change this fact.
In Allonby v Accrington and Rossendale College (Case C-256/01) [2004] ICR 1328; [2004] ECR I-873 the Court of Justice made the following observation:
“… there must be considered as a worker a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration …”
In Syndicatul Familia Constanta v Directia Generala de Asistenta Sociala si Protectia Copilului Constanta (Case C-147/17) EU:C:2018:926; [2019] ICR 211, the Court of Justice of the EU was strongly of the opinion that the relationship between employer and worker was of a “hierarchical” nature. This was a view echoed by Lord Clarke in the Supreme Court’s decision of Hashwani v Jivraj [2011] UKSC 40; [2011] 1 WLR 1872 where he identified the relationship as one of “subordination” in favour of the person receiving the services.
That said, Baroness Hale in a later Supreme Court decision – Clyde and Co LLP and Anor v Bates van Winkelhof [2014] UKSC 32 – stated that “while subordination may sometimes be an aid to distinguishing workers from other self-employed people, it is not a freestanding and universal characteristic of being a worker”. This remark was quoted with approval by Lord Leggatt in the Uber decision at paragraph 74 of his judgement.
In other words, such a feature is merely to be deployed as one of the many possible tests that can be used by the courts to analyse a relationship between two parties.
The Employment Rights Act 1996
Section 230(1) of the Employment Rights Act 1996 contains the definition of who precisely is an employee i.e. someone who has a contract of service. If you don’t have this type of contractual arrangement (you’re not an employee), you may well be working under a contract for services. This is one of the most important distinctions in employment law in the United Kingdom.
Section 230(3) of the Act also defines in law an individual who is a ‘worker’. This can include someone who provides services under an employment contract – and, crucially, some individuals who fall into the self-employed category.
Conclusion
Individuals working under a contract for services – precisely because of their lack of employment status – are often denied access to the sorts of legal rights which employees routinely take for granted e.g. unfair dismissal protection, redundancy protection, family friendly rights.
There are notable exceptions (aren’t there always?): high earning British television celebrities (e.g. Lorraine Kelly) or a number of BBC news journalists have preferred to be treated as freelancers or self-employed persons. Why? They can then minimise their exposure to income tax liability in a way (often via the medium of personal service companies) that would not be possible because if they were employees they would almost certainly be taxed at source on a PAYE (pay as you earn) basis.
We have seen an explosion in the type of work that is often characterised or labelled as the ‘gig economy’. This work is often characterised by a distinct lack of employment rights; irregular working patterns; chronic insecurity; lack of long term career progression; and low pay. It is often impossible for such individuals to complete the necessary periods continuous service to acquire employment rights.
Companies such as Deliveroo, Lyft and Uber have become synonymous with the ‘gig economy’, as have whole sectors of the employment
There’s now a growing awareness on both the part of the UK Government (The Taylor Review) and the European Union (the forthcoming EU Directive on Transparent and predictable working conditions) that people on contracts for services deserve greater levels of work-place protection.
It’s not just in the UK that debates about employment status are currently playing out. At the tail end of 2019, it was with particular interest that, in 2019/20, I was following a story from the United States which highlighted many of the issues which I have just been discussing in this Blog.
The US State of California enacted a law, Assembly Bill 5 2019 or AB5 (known more popularly as the gig economy law) giving those individuals working in the gig economy more employment rights. The law came into force on 1 January 2020.
The Covid-19 pandemic has also exposed the lack of employment protection for workers and the self-employed. Only last March, I was writing about the fact that the U.K. Government’s reforms to Statutory Sick Pay would would not include approximately 2 million individuals – a situation that Frances O’Grady, General Secretary of the TUC was quick to highlight.
By Shannon Clark, Robbie Graham, Salwa Ilahi, Jenna Murray and Ethan Robinson (Editor: SJ Crossan)
Introduction
The above picture shows people in Britain standing on their street participating in the ‘clap for carers’ which now takes place every Thursday.
In the past, seeing all of your neighbours standing clapping and banging pots and pans together every Thursday at 8pm would seem a bit odd. However, this is now the norm and we will go onto explain how this has become the case.
On the 31 December 2019, the Wuhan Municipal Health Commission announced reported a number of cases of pneumonia in the Wuhan, Hubei Provence (WHO, 2020) and so began a Worldwide pandemic. The cause of these cases of pneumonia were eventually found to be caused by a virus called the Coronavirus. The virus has been found to cause an incredibly infectious respiratory disease, also known as COVID-19, which has sent many businesses and economies spiralling into free fall as they come to terms with the impact of the disease.
It has changed the way that almost everyone in society has to go about their daily lives as they have now been advised not to leave their home unless absolutely necessary and if they do need to go out, stay 2 metres apart from everyone at all times. For many it has also brought about change to their working lives as a vast amount of workers are not either having their contracts terminated, working from home or been placed on a fairly new concept in UK Employment Law known as Furlough.
In this article, we will go onto explain the main changes that have taken place as a result of the coronavirus pandemic and how they have impacted on workers, businesses and employment law in the United Kingdom.
Coronavirus update
At the time of writing this article (April 2020), the number of confirmed cases of the coronavirus in the UK was approximately 162,000. While this number is not substantial in terms of the total number of workers in the UK, it has led to around 80% of the workforce in the UK (and across the world) having their jobs impacted by the pandemic. This is due to the fact that many countries, including the UK, have ordered non-essential shops and businesses, for example clothes retailers, pubs and restaurants, to close and stay closed until it is safe for them to re-open. As a result of this, there have been over 1.2 million new unemployment benefit claims in the UK since the beginning of the outbreak (Hope, 2020) and it is expected that around 8 million people will apply to the governments furlough schemefor funding (Osborne & Kellowe, 2020), which we will discuss later in this article.
Sick Pay
In the Employment Rights Act 1996, Section 230 (1) defines an employee as an individual who has a contract of service. As a result of this status, such individuals are entitled to employment protection and benefits such as the right to receive either contractual sick pay or statutory sick pay (Crossan, 2017). In relation to COVID 19, those entitled to contractual sick pay must follow their workplace’s usual protocol when reporting that they must self-isolate. Employees can self-certify for the first 7 days of absence however, they are required to get a note from NHS 111 or a doctor if they must isolate for more than 7 days (ACAS, 2020).
Typically, those described as workers or individuals on a contract for services are not entitled to the same level of protection. This leaves them unable to claim any form of sick pay. Due to the recent outbreak of COVID-19, the inability to claim sick pay could be argued to be one of the main causes of stress and financial worry for individuals due to the uncertainty and lack of information on how this virus is spread. As noted by ACAS (2020), this worry could now be said to be somewhat alleviated, as of 13 March 2020, the UK Government decided that both employees and workers must receive statutory sick pay from their first day of self-isolation if:
They have coronavirus
They have symptoms of coronavirus
Someone they live with has coronavirus symptoms
They have been informed to by NHS 111 or a doctor
Despite this, it should be noted that this change in policy will not be extended to the self-employed. Furthermore, for employees, contractual sick pay is often much more generous than statutory sick pay and it would therefore be beneficial for employees (if able) to claim this through their place of work instead of opting for SSP. In order to be eligible to receive statutory sick pay, employees must be earning at least £120 per week (BBC, 2020) and, as highlighted by the Office for National Statistics, the annual survey of hours and earnings has shown that around 1,766,000 individuals in the UK make less than £120 per week (ONS, 2020). This means that many workers will simply fail to qualify for SSP – such as those on zero hours contracts as they are unable to accrue enough hours; as well as over half of workers aged 65 and above. This leaves such individuals vulnerable to stress and money worries and may even encourage those suffering from viral symptoms and who are considered ‘key workers’ to attend work in order to make ends meet. This is particularly alarming as those aged 65 and above are more susceptible to infection from covid-19 (Hunt, 2020).
Prior to lockdown in March 2020, Gregg’s, the UK high street bakery retailer, unlike many other big businesses, announced that they would pay all staff contractual sick pay if they were required to self-isolate due to suffering Coronavirus symptoms (BBC, 2020). This approach is in huge contrast to the likes of JD Wetherspoon, which prior to quarantine, announced that all of its 43,000 staff would be subject to regular statutory sick pay rules if they had isolate in order to prevent the spread of Covid-19. This meant that not all Wetherspoons’ staff would be entitled to SSP and those that do qualify would only be paid after four or more days absence in a row which would have meant being entitled to receive less than £100 per week (Webber, 2020).
Furloughing
With the toll of the coronavirus pandemic and the lockdown that has ensued, it has left many individuals unable to work due to the variety of ways that they can be affected by the virus. It is essential that these workers are still able to receive some sort of wage to support them during these difficult times. This is where the furlough scheme can assist those who cannot do their jobs. It is a “granted leave of absence” to enable the employment of these individuals to continue despite the current circumstances (Hodgkin, 2020). Lawrie (2020) explains the way in which the furlough scheme works; meaning that an employer can claim 80% of an employee’s wages from the government up to a limit of £2,500 and the company is not under any obligation to fulfil the other 20% of the wage.
This provides a sense of security for these employees as they are reassured that their job is safe and that they can still receive some financial protection if they have been affected by the virus personally or if their employer is unable to provide them with work during these uncertain times.
However, the furlough scheme, which came into effect on 1 March 2020, is only a temporary measure with an initial duration of 4 months. An extension of this can be granted (only if necessary) and the minimum furlough period that an employee is to be placed on is 3 weeks in a row – although they may be entitled to be furloughed more than once (HM Revenue & Customs, 2020).
It is important to note that, when an employee is on furlough, they are not to perform work for their employer and after furlough has ended, the employer is not obliged to retain on the employee, raising the possibility of redundancy (Lawrie, 2020).
The opportunity to benefit from furlough applies to individuals regardless of whether they hold full time/permanent status or not, and this extends to apprentices, workers, individuals on zero hours contracts, agency workers and temporary employees (ACAS, 2020). The way in which a furlough agreement is made is by the employer approaching the the employee or worker for permission – unless there is a lay-off clause included in the contract. The affected employee/worker would then be required to sign a written agreement to this effect. As the West Cheshire & North Wales Chamber of Commerce (2020) explains that failure to secure an employee’s consent to furlough could lead to claims of a contractual breach or constructive unfair dismissal, which is not an ideal position for either party to be in.
“Two-thirds of British businesses have already used the government’s scheme since it was announced last month” reported Bernal (2020) and a prominent example is British Airways, one of the UK’s biggest airlines. The airline worked with the Unite union to furlough 80% of its workforce, which is approximately 36,000 of its employees (Harding, 2020). This major decision applies to a range of their staff, including engineers and cabin crew, and was expected due to the inevitable effect that coronavirus has had on British Airways (Webber, 2020). Instead of being made redundant, the furlough scheme is a means of offering protection for an individual’s job and part of their income. Many workers and employees will surely be glad of the scheme’s existence.
Pay Rise
The UK National Minimum wage and National Living wage was set to increase by 6.2% for 2.8 million people on 1 April 2020 (with this being announced in December 2019). This would be give full time workers an annual pay rise as the National Living wage will rise from £8.20 to £8.72. This would apply to those aged 25 and above. The increase of the minimum wage for 21-24 year olds has risen from £7.70 to £8.20; 18-20 year olds will see the rate rise from £6.15 to £6.45; and for 16-17 year olds there was to be a rise from £4.35 to £4.55. (UK Government, 2020).
However there where discussions that this wage increase may be postponed but this was rejected even though this new living wage will not effect furlough workers as they won’t see the impacts of this on their wages for quite some time. The businesses that haven’t furloughed their workers are being begged to continue in paying the ‘real living wage’ as it is essential to these workers risking their health and safety to come to work. Many companies have begged to have the rise delayed and postponed due to the fact that the coronavirus pandemic which is currently taking place has caused huge financial impact across the UK effecting the economy with smaller businesses suffering the most. It is understandable as to why the government and businesses would wish to delay the increase as this non-essential businesses during the coronavirus have closed e.g. restraints and pubs, thus these business have no money coming in to pay their staff the new minimum wage no less the one that we currently had. This new wage could mean that funds and savings in the business could run dry as they pay their staff furlough wages which could result in these businesses to suffer even with permanent closures of businesses across the UK. But to the millions of key workers whom are working all over Britain giving essential help during the Covid-19 pandemic are still on their living wages and this rise is essential to keep them afloat. (Sheldon,2020).
Amey plc refuses to offer higher sick pay to workers amid the Covid-19 pandemic
The previous living wage was just not enough for people to live on which is the reason that this increase was so important, as it helped make sure that the working class have a good standard of living, but most would say that it is still not good enough and many will not see the benefits until the pandemic is over as furloughed staff are one due 80% of their salary meaning that in the current situation their is even more stress, this can be said as not only are key workers not getting the wage that they deserve for their hard work that is keeping the UK afloat, but many working class citizens are left nothing near the end of the month and this also goes for essential workers, such as NHS staff such as Hakeem Lawal who is a father of three started working as a cleaner for the NHS and has been working there since 2018 with no sick pay provided by his employer , he says “it was very hard because at the end of the month – more or less a week before the end of each month – you are waiting with nothing in your account at all” as well as the fact that the chemicals that he used to clean the facilities where very dangerous for his lungs, meaning that not only was he struggling financially to support his kids but he is aware that the job he is doing is harming himself and he has no safety net if these chemicals where to make him sick and have him off work (BBC News, 2020). It is also going to be more of a struggle for those working at home as it has meant that energy bills are rising as electricity is on far more often as people aren’t turning it off when going to work with a prediction from ‘Energyhelpline’ reckoning that household bills are likely going to rise by 30%.(Jones,2020). The living wage rise would have been greatly appreciated for families that will be struggling financially through the pandemic and self isolation nut if there are only getting 80% of their salary it could result in those who are already struggling to be put in an even worse situation with debt.
On 24 March 2020, during a trade union negotiation surrounding the topic of sick pay for refuse collectors (waste collectors), the head of Human resources at Amey plc (a services company that focuses on improving and maintaining the roads, railways and airports amongst other things) said that the company believed the Coronavirus is “less severe” than normal influenza and because of this they would not be providing their workers with unique sickness benefits (additional sick pay) if they choose to stay at home during the pandemic (Booth, 2020). The GMB trade union, who were arguing in favour of better sick pay for refuse collectors at the negotiation were shocked by Ameys comments regarding the coronavirus, they argued that it is unfair for these key workers to only be offered the minimum amount of sick pay (£94 per week).
Following the GMB’s defence of the waste collectors, Simon Schumann-Davies (the head of human resources for Amey) claimed that Coronavirus was significantly less severe than other diseases and stated that there would be no change in the sick pay that they offer to their workers: “we are applying exactly the same rules regarding sickness benefit as we would for any other condition in that we will be paying contractual entitlement.” (Davies, 2020)
In response to this Keith Williams from the GMB argued that Amey are forcing their workers to put their health at risk as they would financially suffer by choosing not to come to work and only receive statutory sick pay.
Following the barrage of criticism that Amey received for their actions towards their workers, a company spokesperson stated (on 31 March) that workers who decide to self-isolate will receive full pay. Shortly prior to this announcement, Amey had issued a statement clarifying that the opinions of Simon Schumann-Davies did not reflect its position on the pandemic. (Sumner, 2020). With the increasing severity of this situation it was inevitable that any decision by the company not to allow sick pay for workers would provoke an intense, public backlash and this, undoubtedly, forced them to change their policy.
Conclusion
The Covid-19 pandemic has had a massive impact on almost everyone – and will continue to do so for the foreseeable future. It has changed the way that workers in the UK go about their daily home and work life and has brought about massive amounts of uncertainty. However, some of that uncertainty may have been removed due to the factors explained in this article, such as changes to SSP and the UK government’s furloughing scheme as employees and workers can be, somewhat, helped financially during these unprecedented and difficult times.
HM Revenue & Customs, 2020. Check if you can claim for your employees’ wages through the Coronavirus Job Retention Scheme. [Online] Available at: https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme [Accessed 28 April 2020].
Lawrie, E., 2020. Coronavirus: What does it mean if I’ve been furloughed by work?. [Online] Available at: https://www.bbc.com/news/explainers-52135342 [Accessed 27 April 2020].
By Stephanie Crainey, Ross Codona and Briege Elder (Editor: SJ Crossan)
Introduction
Sport is often viewed as a special entity whereby the law and legal systems do not directly interfere with its rules (Laver, 2020). Therefore, the rules under which a particular sport is played are not an area where the legal system will usually interfere.
The government in the United Kingdom has adopted this non-interventionist approach to sport, meaning there is no general law for sport. Instead regulation is left to the National Governing Bodies (NBGs) (Bennett, 2019).
However, with the turn of a new decade and the economic crash caused by the COVID-19 pandemic, some major issues in sports law have arisen, including whether an athlete is an employee or worker, the terms and conditions governing athletes and their use of social media platforms. Can these issues possibly be addressed, never mind resolved?
Is an Athlete an employee or a worker?
Above British cyclist, Jess Varnish (right) who is currently involved in legal action against British Cycling and UK Sport over her employment status
The question of an individual’s employment status is always up for debate no matter which profession we are discussing. The focus of this question, in recent times, is mainly focused around the gig economy. This type of work might involve individuals providing a service e.g taxi driver (Uber) or food delivery (Nicholson, 2019).
However, due to the nature of the work (short-term and very insecure), gig economy workers are not usually granted the same rights and protection as employees under UK employment law.
Attempts have now been made to address this situation: in 2017, Matthew Taylor, Chief Executive of the Royal Society of Arts and former Downing Street adviser, was commissioned by the UK Government to conduct an independent review on modern working practices; and in the US State of California, Assembly Bill 5 was passed into law in 2020 giving gig economy workers employment status. The Taylor Review looked at the growth of the UK gig economy and considered its implications for worker rights and responsibilities (Nicholson, 2019). Despite the widespread attention that the Californian Assembly Bill 5 and the Taylor report both received, there is still not sufficient clarity surrounding the status of workers who provide services in the gig economy.
In 2018 the issue of employment status and sport received a lot of media attention when former Great Britain cyclist, Jessica Varnish argued that she ‘should be considered an employee of British Cycling or of the funding agency, UK Sport.’(McGowan, 2019). The world silver medallist set out to prove she was, in fact, an employee in order to enable her to sue British Cycling and UK Sport for both wrongful dismissal and sexual discrimination, after she was dropped by team GB before the 2016 Olympics. Shane Sutton, former British Cycling director, was found to have used sexist language toward Varnish, although he denied these claims. Sutton later left his post with British Cycling.
Unfortunately, for Varnish, she lost her claim for wrongful dismissal at the Employment Tribunal in early 2019. Put simply, the Tribunal held that she was not an employee of either British Cycling or UK Sport and, therefore, she was not entitled to bring such a claim. Varnish has now appealed to the Employment Appeal Tribunal.
The appeal hearing could either overturn the decision of the Tribunal or order a new hearing to take place. Varnish stated:
“Iwant to give others the opportunity to hold to account employees of governing bodies, who they interact with on a daily basis, and have significant control over their careers and opportunities.”
She added:
“I continue to think it’s unfair that athletes still have no structured means to do this, and I hope this appeal will be the first step towards affecting change, and bring about a fairer, more modern and high performance system in the UK where athlete welfare is not just a sound bite, but something that we all believe in.” (McGowan, 2019).
In response to her statement, a British Cycling spokesmen added:
“We very much regret that Jess has been advised to pursue the route of an employment tribunal when other avenues were available to her….. We will continue to represent what we believe are the best interests of every rider currently supported through the high performance system, and all those in our sport who hope to one day compete at an Olympics or Paralympics.” (McGowan, 2019).
Employment rights: employees vs workers
Determining the question of Jessica’s Varnish’s employment status (employee or worker) is vital to this case as it will decide what employee rights she is entitled to (if any).
True, most workers are protected against unlawful discrimination in terms of the Equality Act 2010, and harassment and victimisation in relation to ‘whistle-blowing’ actions (reporting of wrong doing in the work place). However, you must be an employee in order to be protected from unfair and wrongful dismissal (CIPD, 2020)
Section 230 of the Employment Rights act 1996 defines an employee as “an individual who has entered into or works under a contract of employment.”
Over many years, UK courts and Tribunals have developed specific tests that must be fulfilled in order to assess an individual’s employment status (Crossan, 2017). These include:
Mutuality of obligation
The control test
The economic reality test
The organisation or integration test
The definition of a worker (which is a wider concept than an employee) can also be found in different pieces of legislation e.g. the National Minimum Wage Act 1998 and the Working Times Regulations 1998. The Chartered Institute of Personnel Development (CIPD) defines a worker as:
‘an individual who undertakes to do or perform personally any work or service for another party, whether under a contract of employment or any other contract.’(CIPD, 2020).
Although the CIPD definition is based on the Employment Rights Act 1996, the definition of worker varies from statute to statute.
As in other parts of the UK employment market, the employment status of athletes will often be a contested concept, meaning that the various tests listed above will have to be deployed by the courts and Tribunals to resolve the issue. It is notable that a large part of Jessica Varnish’s original Tribunal action focused on the control test i.e. she had to follow the training regime laid down by British Cycling in order to be eligible for continued funding from UK Sport.
Athletes in the world of social media
Social media is a great way for an athlete to connect with their existing fans. As well as this, it also allows you, the individual fan to connect with others whom you have never met, such as other fans of your team/sport, or supporters from your hometown etc. Athletes, amateur and elite, can have their use of social media restricted and regulated through provisions contained in Standard Player Contracts.
This is completely understandable from the point of a view of an employer or sponsor because an athlete’s online activities/posts may bring about critical, reputational harm and financial loss to partnered clubs and associations. Athletes’ contracts may contain certain restrictions on what they can and can’t post on social media. However, these restrictions may or will vary from specific social media targeted polices (“blackout” before during and after games), to more general restrictions which cover wider aspects of an athlete’s behaviour (Social Media In Sport: Top Tips, 2020).
Clubs and organisation are urged routinely to remind athletes with regard to what is appropriate and inappropriate online behaviour. This can incorporate a reminder to athletes that, while they are not participating in the activity, they still have commitments to the employer and sponsors and are expected to stick to an agreed code of conduct – just as though they were working. Athletes may have both a personal and professional social media account, but the restrictions and requirements that they are expected to adhere do not change.
Social media allows athletes to secure sponsorship. Platforms such as Facebook, Instagram and Twitter are just some of the ways to reach thousands of people who you would not normally be able to target.
In the UK, athletes and brands must take care when posting promotions and sponsored posts. This is regulated by the Advertising Standards Authority and the Committee of Advertising Practice Codes. The CAP code requires that all advertising is easily identifiable.
In 2012, professionalfootballers, Wayne Rooney and Jack Wilshire broke this requirement after they posted a tweet under Nikes campaign slogan ‘#makeitcount’. The two athletes failed to make it clear that the tweets were in fact from Nike’s marketing communications. For an athlete or any individual using social media for promotional purposes, they must add ‘#spon’ or ‘#ad’ to a post, something which both Rooney and Wilshire failed to do. This helps to make the advertising easily identifiable and prevents anyone from failing to meet the requirements (Social Media In Sport: Top Tips, 2020).
A delicate balancing act
Guidelines for athletes to follow for social media may vary from each profession. It’s no surprise that what Athletes post can be seen potentially by millions of people around the world. There is a need to ensure that, before posting any content, they are happy with what they are about to upload. Are they happy for the post to be linked back to them and be easily accessible forever? Would they be happy if the post was to end up appearing somewhere which was not intended e.g TV, gossip magazines/blogs? It can be a very delicate balancing act.
It is important to respect yourself, your sport and the club/organisation of which you are part. Anyone, especially a public figure (such as athletes), must ask themselves, how might this be portrayed or received by my followers? Will this reflect negatively upon their “role model” status? Could my post effect sponsorship for them or the sport?
These are just a few guidelines that Scottish athletes have to consider Athletes must also ensure that the amount of time they are spending on social media is not affecting their performance. All of these factors are essential when considering what content to upload and share with your followers on social media. Ultimately it’s all about having respect for your audience and yourself.
Maternal/paternal rights for athletes
Many employees receive family-friends benefits which include parental leave or childcare. Diageo, for example, is a UK beverage company which recently introduced female employees to be offered a minimum of 26 weeks fully paid maternity leave under a new global policy (Rennie and Beach, 2020). The vast majority of employees, by contrast will receive just the statutory minimum maternity pay.
Maternity rights
Sporting bodies are generally falling behind in creating Family-Friendly policies which is inconsistent with modern attitudes towards athletes’ rights. Many British athletes e.g Jessica Ennis-Hill and Jo Pavey are parents, yet have still made a successful return to sport.
UK Sport Guidance states thatif a female athlete becomes pregnant they can continue to receive World Class Programme funding and support during pregnancy and after child birth. She (the mother) and her performance director are expected to agree a new appropriate training and competition programme that would map the athlete’s return.
Three months after childbirth, the sports performance director is encouraged to undertake a review with the athlete in order to assess them on her commitment to the agreed plan. By the end of the three months, if the athlete has made the decision that they in fact do not want to return to the sport, then they would be given a notice period depending on the length of time that they had been involved on the World Class Programme before they were then removed from funding (Falkingham, 2020).
Paternity rights
In 2019, the England Cricket team had its biannual tussle with rivals Australia. Batsman, Joe Denly, a new recruit to the England ranks, left the field at the end of the first 5 days of the final Test Match at the Oval in London. The athlete drove 60 miles to be with his wife for the birth of their daughter. The following day, Denly was back on the field facing the Australian bowlers. Joe then went on to create the highest score to date, only narrowly missing out on a Test century (Jackson and Brenner, 2018 and Anderson et al, 2019).
Denly’s story is a happier example than the experience of former Manchester United’s French star, Anthony Martial. The star was fined £180,000 and shamed publicly in 2018 for missing a week of training after flying to be his wife in order to support her through a difficult labour and welcome their son into the world. Two of the days in which he was away were dedicated to travel alone (Jackson and Brenner, 2018 and Anderson et al, 2019).
Sporting success is valued more than family. The famous one liner,“winners never quit and quitters never win” is one which athletes find so important. So much so that, in the 1990s, the President of Oakland athletics, Billy Bean missed his partner’s funeral in order to continue playing a game (Anderson et al, 2019).
These types of incidents sit completely at odds with decent treatment of employees. Organisations are increasing the length of time woman get full maternity pay. A study by the University of Birmingham found that only 9,200 new parents (just over 1% of individuals entitled) shared parental leave in 2017-18. However that rose to 10,700 in the financial year 2018-19. Companies now seem more willing to offer other options to just maternity leave, in the hope of recruiting and retaining high calibre employees (Birkett and Forbes, 2018).
How has Coronavirus has affected sport?
Law in sport is no different to ordinary law in that sporting organisations and sponsors have to respect and obey the rules. This has been particularly highlighted during the current COVID-19 pandemic crisis.
Coronavirus has caused major sports leagues and events around the world to cease current activities or cancel upcoming events due to strict lockdown rules (The Independent, 2020). COVID-19 has forced governing bodies to try to intervene and protect institutions within their area, for example, FIFA (the governing body of football) has set up a £121 million relief fund for its 211 national associations (Keegan, 2020)
The lockdown laws which come as part of the pandemic haven’t just affected international bodies but also had an affect domestically. In Football, national leagues such as the Premier League in England have come to a halt until further notice ,whilst some other leagues around Europe declared their seasons over or null and void as they have in Ligue 1 (France) and the Eredivisie (The Netherlands).
The halting of sporting activities isn’t the only implication of this crisis: it has had a major impact on the employment of all those involved in sport directly or indirectly.
In the UK, furloughing has been introduced to try and help businesses to pay their employees. The furlough scheme means that the UK Government pays 80% of employees’ wages up to a ceiling of £2500 a month (HMRC, 2020).
This causes issues, however, for many professional, sporting institutions, as many athletes are earning far above £2500 a month. Therefore such individuals are ineligible to be furloughed placing sporting institutions under serious financial strain should players refuse to take wage cuts. FC Sion, a football team in Switzerland, were forced to terminate the contracts of 9 footballers after they refused to take pay cuts (BBC, 2020b)
In other instances, the furlough scheme has been supported and it has had the desired effect. The McLaren Formula 1 team main drivers Carlos Sainz and Lando Norris have taken pay cuts in order to support their fellow employees on the team (Galloway, 2020)
Added to this, the UK Health Protection Regulations 2020 have prevented sports such as Formula 1, Football, Boxing or Rugby being performed because of current social distancing restrictions. Whilst this has had a detrimental effect on the sporting world as a whole, it has provided a boost in less traditional fields. E-sports have increased in prominence since the cancellation/postponement of traditional sporting events. Formula 1, in particular, has capitalised on the potential E-sports platform. Formula 1 has been hosting ‘virtual’ Grand Prixs where a mixture of current drivers, figures in the sport, other sportsmen or celebrities race against each other by using the official Formula 1 video game (Dixon, 2020).
The reaction has been positive as a reported 3.2 million viewers witnessed the inaugural virtual Grand Prix, the stature of many of those involved is testament to its success as prominent figures in world sport such as Thibaut Courtois, Ciro Immobile and Sir Chris Hoy have all competed in the virtual Grand Prix (Dixon, 2020)
The cancellation of major sporting matches and events is causing massive implications financially and logistically. In Rugby there had been suggestions that games in France could be played behind closed doors should the league be started again. Club owners highlighted objections to this, in particular, the owner of ‘Stade Toulouse’ would potentially lose millions of Euros before the end of the season should games be played behind closed doors (Ultimate Rugby, 2020).
The UK Health Protection Regulations 2020 have caused major financial implications to sporting institutions across the country. Leeds United, a football club competing in the English Championship, is set to miss out on lucrative financial benefits of promotion to the Premier League. Being promoted to the Premier League guarantees Clubs a large sum of prize money worth millions. However, the following season they spend in the premier league promises them close to £100 million even if they finish last place (Winters, 2020). This level of money could help Leeds United recover from its financial deficit. At the time of writing, all games have been postponed for the foreseeable future meaning that there is a lack of certainty as to what happens next.
Logistically on a global scale COVID-19 has caused the disruption of massive global events that take years of organisation to have now been postponed. Although some of the postponements are only estimated to be a year, the cost can still be detrimental. Reports claim that a one year delay of the Olympics could result in £2.3 billion in further costs (Mail online, 2020).
Conclusion
COVID-19 has emphasised key aspects of employment law, even at an elite level in sport there is more protection being employee rather than being a worker or self-employed. Many members of clubs and teams in different sports have agreed pay cuts. However, they are still being paid. This situation isn’t the same for professional golf: players are registered as self-employed. Footballers are still being paid or have at least agreed a deferral of wages or a temporary pay cut, but nevertheless, their employment contract still protects them during this time of major uncertainty. Golfing stars such as Rory McIlroy and Tommy Fleetwood do not have this protection unlike football stars such as Harry Kane and Raheem Sterling.
It is clear that UK employment law needs to do more in determining an athlete’s employment status. The UK Government must also work harder to protect athletes and their rights. Due to the catastrophic pandemic, not only will sports organisations and clubs suffer but also their athletes. The only certainty in these most uncertain times is that Covid-19 is likely to generate a plethora of future legal disputes which will shape our legal landscape, especially in the world of sport, for some time to come.
BBC, 2020a. Coronavirus: How The Virus Has Impacted Sporting Events Around The World. [online] Available at: <https://www.bbc.co.uk/sport/51605235> [Accessed 22 April 2020].
BBC, 2020b. FC Sion sack nine players for reportedly not taking pay cut because of coronavirus crisis. Available at: https://www.bbc.co.uk/sport/football/51980881 [Accessed 22 April 2020].
HM Revenue & Customs, 2020. Check if you can claim for your employees’ wages through the Coronavirus Job Retention Scheme. [Online] Available at: https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme [Accessed 22 April 2020].
By Helan Ali, Rebecca Brodie, Cameron Crossan, Jack Holland and Eve Richmond (Editor: SJ Crossan)
Introduction
Dismissal occurs where an employers terminates the contract of employment between themselves and the employee. There are several types of dismissal that can arise such as: fair, unfair, wrongful, summary and constructive.
Perhaps the most common mistake amongst members of the public concerning dismissal is the tendency to confuse wrongful and unfair dismissal: they are entirely separate (Crossan, 2017). An unfair dismissal is one which breaches or contravenes statute; whereas wrongful dismissal occurs when the contract of employment is breached.
In all dismissal claims, it is important to determine if the claimant is actually an employee. This status is outlined in S230 of the Employment Rights Act 1996 in that the individual in question must be employed under a contract of service.
Employment law – always a tricky area to navigate as a result of its sheer volume becomes particularly difficult when it comes to the area of dismissal – as there can be a delicacy when it comes to terminating the employee’s contract. If you look at recent media stories, there are several high profile dismissal cases such as former senior civil servant, Sir Philip Rutnam pursuing an unfair dismissal claim against UK Home Secretary, Priti Patel or the UK retailer, Asda (part of the Walmart group) forcing their employees to accept new contracts or to face dismissal.
Unfair dismissal
Fair dismissal occurs when there is a termination of the employment contract, but the employer has the right to act in this manner as per S98(2) of the Employment Rights Act 1996.
The employer may have fair grounds to dismiss an employee under grounds of capability where the employer genuinely does not believe the employee is able to carry out their role any longer. Such a dismissal can be seen in Taylor v Alidair [1978] IRLR 82 where a pilot was dismissed from his contract after he landed a plane negligently and there was serious danger to life and limb. The pilot’s subsequent dismissal was completely fair in the circumstances.
An employer may also have the grounds to dismiss an employee on the grounds of conduct. Generally, one act of gross misconduct could potentially result in an employee’s dismissal. However, employers must have clear guidelines and these must be adhered to, but it does not necessarily mean that in every situation the same same outcome i.e. that of dismissal be the end result. Employers are entitled to have recourse to what is known as a reasonable band of responses, which might include the following:
Verbal or written warnings
Demotion
Dismissal
Deduction in pay (if the contract so permits)
If the employer has acted reasonably when carrying out the dismissal of the employee, there can be no overturning of that decision by an Employment Tribunal. This is regardless of whether the Tribunal would have taken a more lenient approach i.e. a preference for a final written warning over dismissal (see Iceland Frozen Foods v Jones [1983] ICR 17).
Employees are not exempt from their employer’s code of conduct even when they leave the premises as their actions taken outside of work can still result in a dismissal. This can be seen in McLean v McLane Ltd EAT 682/96 where an employee was drunk and disorderly outside working hours. He was also found to in possession of cannabis (a Class C drug in the UK). This information was released to the media which reported the story and, as a result, the employee was dismissed. This action by the employer was deemed fair by the Employment Tribunal.
Not all employees are fairly dismissed and the actions of the employer might mean that have been unfairly dismissed. To qualify for employment rights regarding unfair dismissal, an employee must normally have a minimum of 2 years’ continuous service (as per the Employment Rights Act 1996), but there are numerous exceptions e.g. discrimination, health and safety and whistle-blowing dismissals.
Employers can, admittedly, find a way around the 2 year continuous service period by employing someone on short-term contracts, thus ensuring that the minimum qualifying period is never met and the employee has not acquired any rights in respect of dismissal.
In some employment roles it is not possible to be unfairly dismissed due to the nature of the role e.g. UK armed forces and/or police service staff. Employees have the right be accompanied to a dismissal meeting if they choose to do so, they can bring a fellow employee or trade union official. Further details on this can be found under S10 of the Employment Relations Act 1999. Employers should adhere to their company guidelines and follow procedural fairness when disciplining employees – especially if dismissal is an option they are considering (as demonstrated in British Homes Stores Ltdv Burchell [1978] IRLR 379).
Wrongful dismissal
Moving on to the issue of wrongful dismissal, where the contract is breached due to the dismissal procedure. The most common example is the employee does not receive the requisite notice period from the employer. In this instance the employee would not require two year’s continuous service to raise a claim in this regard. The statutory minimum notice period, according to S86 of the Employment Rights Act 1996, is one week for each year of service up to a maximum of 12 weeks.
Claims for wrongful dismissal must be made within three months’ minus one day of the effective date of the termination of the contract to the Office of Employment Tribunals (OET). The case of Morran v City Council of Tenants (1998) is highly instructive.
Morran claimed wrongful and unfair dismissal when his employer dismissed him without being given the compulsory notice period; he just missed out on accumulating enough continuous service. Held by the Scottish Court of Session, Morran was entitled to claim wrongful dismissal and receive compensation however he could not claim unfair dismissal as he had never acquired the actual right to bring such a claim. Employees who claim wrongful dismissal tend to be reimbursed by compensation. It would be very rare for an employee to go back to their job after claiming wrongful dismissal.
In fact, S236 of the Trade Union and Labour Relations Act (Consolidation) 1992 states that no court or Tribunal can issue an order for specific implement or anything which will force the parties to work together under an employment contract.
Summary dismissal
Another type of dismissal is summary: “This is when you dismiss someone instantly without notice or pay in lieu of notice, usually because of gross misconduct (for example theft, fraud, violence).” (UK Government, 2020). Summary dismissal if not handled properly can be wrongful or unfair. An employer will need to prove the employee has committed violent or serious acts or health and safety breaches.
Even if an employer feels summary dismissal is the preferred option, it is worth stepping back and taking stock. It is often better and far safer to suspend an employee on full pay and then investigate the situation to head off a potential claim for unfair and/or wrongful dismissal.
Summary dismissal will be justified if the employer can prove the act committed by the employee amounts to gross misconduct in the workplace. However, if the employee can argue that their actions were not that of gross misconduct and no notice period was given employer will be liable for wrongful dismissal. The remedies available to the employee would be compensation.
Constructive dismissal
One last dismissal claim is that of constructive dismissal. This arises when an employer commits a serious breach of the employment contract and the employee has no alternative but to resign. In these types of claims, employees can treat themselves as dismissed as the employer’s behaviour has effectively destroyed the employment contract.
The individual claiming constructive dismissal is saying S/he has been unfairly dismissed and for this claim to be granted they must prove the employer’s conduct was so severe that it amounted to a fundamental or material breach. Constructive dismissal occurs in “situations where the employer made unauthorised deductions from wages; subjected to bullying and harassment; where the employer refused to follow the proper disciplinary or grievance procedures.” (Crossan, 2020)
In Sharp v Western Excavating Ltd [1978] ICR 221, Lord Denning explained the rules regarding constructive dismissal:
“An employee is entitled to treat himself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment… then the employee is entitled to treat himself as discharged from any further performance.”
As a point of interest, Sharpe was not entitled to claim constructive dismissal: his employer was perfectly within its rights to refuse him time off from work to go and play cards. The employer’s behaviour was entirely reasonable and thus did not represent a material breach of the employment contract.
Procedural fairness
When contemplating dismissal as an option for disciplinary offences, it is often safer for employers to suspend the relevant employees on full pay and carry out a full investigation, rather than dismiss employee instantly. Employers should ensure that disciplinary procedures are clear and consistent and comply with current ACAS Codes on discipline at work (see link below).
Claims for both unfair and wrongful dismissal must be made within three months’ minus one day of the effective date of the termination of the contract to the Office of Employment Tribunals (OET). Failure by the claimant to submit an application within the time limit will mean that the claim is time barred i.e. it cannot normally be heard by the Tribunal – no matter its merits.
Remedies for dismissal
A claimant who brings a successful action for dismissal may be entitled to the following remedies issued by a court or a Tribunal:
Compensation
Reinstatement
Re-engagement
If the employee can claim dismissal, they could be entitled to compensation and/or reinstatement (failing that, re-engagement if reinstatement to their old position is no longer available). An employer does not have to reinstate or re-engage the employee and may find it more acceptable to pay a higher sum of compensation.
Sir Philip Rutnam
A current unfair dismissal case is that of Sir Philip Rutnam, former Permanent Secretary at the UK Home Office. Sir Philip is claiming unfair dismissal against his former boss, the current UK Home Secretary Priti Patel MP.
Sir Philip resigned because he is alleging that he was subjected to bullying by Mrs Patel (she denies these claims). At the time of his resignation, Sir Philip, was the Home Office’s most senior official, and he claimed that there had been a “vicious and orchestrated” operation against him. Sir Philip presented a claim to the Employment Tribunal for unfair (constructive) dismissal against the Home Secretary. A Cabinet Office investigation was initiated in March 2020 concerning the allegations against Mrs Patel in order to establish if she had breached the ministerial code. (Patel faces unfair dismissal claim from ex-adviser, 2020). The case is ongoing, but if Sir Philip is successful in his action, it will be hugely embarrassing to the UK Government.
Jo Millington
In another, recent case relating to constructive dismissal, a leading forensic scientist called Jo Millington was a victim of sexual orientation discrimination in the workplace. The scientist was asked by her boss whether she disliked him because of her sexuality. Millington, who is gay, took her case to an Employment Tribunal. She launched claims for sexual orientation discrimination, breach of contract and constructive dismissal against her former employer, ArroGen Forensics after the company’s CEO Joe Arend speculated whether her sexuality was the reason behind her evident dislike of him.
Arend had inquired whether Millington had a problem with him “because of her sexuality”, pointing out he was “big” and “used to play rugby”. The Reading Employment Tribunal was told Millington that she had previously complained about Arend’s behaviour when he referred to the level of her expenses and salary as “crazy”. The Tribunal found the company liable for discrimination on grounds of sexual orientation, constructive dismissal and breach of contract. It concluded that Jo Millington regarded her sexual orientation as a confidential matter; Millington was granted compensation. (Lowe, 2020).
No smoking!
In another unfair dismissal story, a long serving worker at a water bottling plant was sacked for smoking on the premises. The employee took a claim to Tribunal for wrongful and unfair dismissal, which resulted in a successful claim. The claimant, Mr Andrew was a team manager for production at Montgomery Waters Limited, where the no smoking rule was introduced in 2004. Employees were, however, permitted to smoke in a designated ‘smoking hut’.
Bosses were informed that Andrew was seen smoking outside the ‘smoking hut’. CCTV was viewed and appeared to show Andrew smoking, on four occasions, in prohibited areas. The footage showed a man wearing red overalls and Andrew was one of two people to wear these. Andrew, who had 15 years’ service with the company, was suspended during the disciplinary investigation. Andrew denied the allegations, but was still dismissed from his employment. During the Tribunal Hearing, the judge highlighted the vagueness in the firm’s handbook on whether smoking in prohibited areas would amount to misconduct. The judge also observed that it was the employer’s responsibility to enforce strict rules restricting smoking in particular areas. Although Andrew’s claims for both wrongful and unfair dismissal were upheld, the compensation awarded to him was reduced by 50% on the basis that he had contributed to his dismissal (Powys County Times, 2020).
New T&Cs
A controversial case regarding the potential threat of dismissal is Asda’s introduction of a new contractual agreement known as ‘Contract 6’, which will replace the existing agreement. It was introduced back in 2017 and, at this time, signing the new contract was voluntary.
‘Contract 6’ abolished paid breaks, introduced compulsory bank holiday working, staff could also be asked to work flexible hours and work in different departments within the store. In August 2019, Asda were accused of forcing employees to agree to accept ‘Contract 6’.
Asda stated that their employees are required to sign the new contract by November 2019 and, if they failed to do so, their contract of employment would be terminated. Employees would not be entitled to sick pay until the contract was signed. The GMB Trade Union attacked the new agreement and claimed that, under the new conditions, employees would be worse off. The main objection raised by the employees and their trade union was the inflexibility of the contract.
Under these new terms, day shift employees had to be more flexible with their working hours – they had to be available for work between 5am and midnight. It also meant employers could give less notice than before with regard to changing shifts. Employees took the view that Asda was disregarding employment law by unilaterally changing key terms and conditions.
In response to the claims being made, Asda may be able to justify their dismissals as fair in terms of Section 98(2) of the Employment Rights Act 1996 on the grounds that the employer can show that some other substantial reason is the justification behind terminating contracts.
In Asda’s case, the company may be able to justify their actions on the grounds that the new contractual arrangements have been necessitated as a result of a company restructuring exercise. This could make the dismissals potentially fair (Crossan, 2017).
Currently, lawyers for Asda and the GMB Trade Union are at loggerheads. One claim for unfair dismissal has so far been submitted by a former Asda employee, Duncan Carson. He was dismissed due to not signing the new ‘Contract 6’. Carson had worked at Asda for 13 years in total, and a large part of his legal argument is that “a contract is an agreement between two parties”. Carson believes, if one person can change the contract unilaterally.
Furloughing employees
The Coronavirus Job Retention Scheme (CJRS), announced by HMRC on 20 March 2020, is a UK Government funded scheme to provide financial support for employers to allow them to continue to pay part of their employees’ wage costs rather than lay them off during this crisis.
Eligible workers are put into the scheme by employers when agreement is made between both, and these employees are now furloughed workers (Association of Taxation Technicians, 2020)
Nunn (2020) explains that the scheme allows companies to ‘furlough’ their employees, covering 80% of the wage cost, allowing the claim to include 80% of their employee’s gross salary with cap of £2,500 a month.
CIPD (2020) defines furlough as a ‘temporary leave of absence from work’ due to economic conditions of affecting the company or country.
Although this is a new concept for the UK labour-force, the scheme does nothing to change how the fundamentals of UK employment law e.g. it does not mean a break in continuity of employment. The employee must give written agreement to the employer before being enrolled in the scheme.
The CJRS ensures the job security of the British workforce due to employers being unable to provide pay.
The official government site (UK Government, 2020) announced that the scheme is only temporary; set to last a maximum of 4 months, with a 3 consecutive week minimum period for each employee to be furloughed.
The government site explains that employees on sick leave are not eligible for furlough whilst the business is reclaiming Statutory Sick Pay. HMRC allows employers with less that 250 employees to reclaim 2 weeks of Statutory Sick Pay for each employee off work for a coronavirus related cause, although the method to do so has still to be put in place by the HMRC. Employees with multiple jobs can also be furloughed from either or both jobs, as the £2,500 wages’ cap applies to each job.
In order to be eligible for the government scheme, the employer must have PAYE account, and each employee must have been included on RTI submission in the pay period on or before 19 March 2020 (CIPP, 2020).
The UK Government (2020) also announced that any employees made redundant before 28 February, due to the impact of Coronavirus, could be eligible for furlough status – as long as they were on the PAYE scheme before they were dismissed. Employers could claim for them also and this part of the furlough scheme has prevented those in industries, such as hospitality, from being almost certainly made redundant.
It is, of course, up to the employer if they choose to furlough any dismissed employees who are eligible to partake in the CJRS and there is no legal requirement for the employer to go down this path.
Therefore, utilising the CJRS gives employers the cash-flow for the wage costs to be able to keep employees on their payroll for when the business reopens, as an alternative to dismissing them during this global crisis. At this present time,it ensures job security for the employee but it may also mean living with a reduced wage.
Conclusion
To summarise, dismissal is a vast and complex area of employment law yet once broken down becomes that bit clearer to understand. The area is ever changing with cases now coming against the Government itself and what pathway that may open if Rutnam is successful in his claim against Patel. There are also the uncertainties in the world just now surrounding coronavirus and the impact it was have on employee’s not only with their wages but with their employment status when this all ends.
By Rachael Holton, Ryan Kelly, Amy McWilliams and Jamie Watt (Editor: SJ Crossan)
As a society, we understand the concept of employment. You offer to work for an individual or an organisation in return for payment. Nonetheless, the status of employment, the kind of work and what kind of contract you have can take many forms. What are these different types of employment status? Well, as per Section 230(1) of the Employments Rights Act 1996, an ‘employee’ refers to a person who has gone into or works under a ‘contract of employment’. However, this is not the only type of employment status that exists, and this is a common misconception of today’s generation. In the workforce, some individuals are classed as ‘workers’ or ‘self-employed’. What is the difference?
Differences in Employment Status
For the most part, an employee works under what is referred to as a ‘contract of employment or service’. The agreement will list the basic rights of a worker, for example, whether it is temporary or permanent work, annual leave and working hours. An example is displayed below:
You could be forgiven for believing that this was the most widely recognised kind of ‘work’ or employment. According to figures from the Office of National Statistics, however, just 13% of the workforce in London are classed as ‘employees’, with over 27% working in the gig economy (Rodgers, 2018).
An employee essentially works under a contractual agreement. However, in any case, the rights vary to that of an employee, who is typically qualified for additional, and dissimilar sorts of rights. A worker must finish the work themselves except if they are offered consent to subcontract the work. A business will frequently utilise such and individual to help for a set timeframe, giving them enough work to fill their days over the length of their contract (Rodgers, 2018).
Conversely, a self- employed individual is classed as a subcontractor, who maintains their own business and, in this manner, assumes full liability for everything that accompanies that status. They work for themselves, implying that a great part of the time employment law, unfortunately, does not cover them (Rodgers, 2018).
The issues arising from an individual’s employment status can be seen in the case of Knight v Fairway & Kenwood Car Service Ltd UKEAT/0075/12/LA. The claimant was a cab driver working with the respondent organisation under written terms. If he paid the present lease and gave appropriate notices, he could work, or not, as he wished with no antagonistic outcomes under the agreement. He left the respondent organisation in the wake of being approached to do taxi jobs once they had been taken paying little mind to the conduct of the specific customer. He claimed wrongful dismissal, i.e. a claim for a breach of the employment contract.
Held: The Employment Tribunal ultimately decided that he was not working under a ‘contract of employment’ thus his case could not be heard by them. The claimant submitted an appeal. Nevertheless, the Employment Appeal Tribunal dismissed the claim on the grounds that the composed terms did not require any base or sensible measure of work from the claimant; he was allowed to work or not work. Nor in the conditions was there scope for inducing such a commitment from the way that the claimant, in truth, worked 7 days per week.
EmploymentRights vs Employment Status
The distinction between these types of employment status’ is so important in the workplace, and it is crucial that employers and individuals are aware of such differences. All employees are workers in a sense; however, employees get certain employment rights in their agreement that a worker does not. The difference between a few of the rights available to individuals, based on their employment status can be seen below:
In the event that an individual is uncertain about their rights in relation to employment law, the Advisory, Conciliation and Arbitration Service (ACAS) has set out the rights these individuals are entitled to, depending on their employment status. A link to these rights can be found below:
Now, while there are laws that cover both employees and workers e.g. under Section 10 of the Employment Relations Act 1999, both employees and workers have the right to be accompanied by another individual in disciplinary or grievance hearings, there can be clear differences in how employees and workers are treated. A significant topic that has come under scrutiny in the past, and especially now in these uncertain times, is that of Sickness and Absence in the workforce, in particular, the right to receive or claim Statutory Sick Pay (SSP).
Statutory Sick Pay
Positioned above is a copy of the Statutory Sick Pay document.
As previously mentioned, some UK employees could be entitled to receive a form of sick pay from their employers, otherwise known as contractual sick pay. However, the amount of money paid depends on the length of time the staff member has worked for at the commencement of the absence. Those who have worked at the organisation for less than a year, for example, may receive full pay for five weeks, and half pay for a further five weeks. For those, who had more than five years’ service, they would receive 26 weeks full salary and a further 26 weeks half pay (Crossan, 2020).
On the flip side, for employees who are not entitled to receive contractual sick pay, Statutory Sick Pay can be claimed. In order to be eligible, claimants must be earning a minimum of £120 before tax per week. To test whether s/he qualifies for SSP employees submit a written document to their employer, if requested, before a set deadline (Crossan, 2020).
If any of our readers wish to obtain access to this form, we have provided a link below:
On the other side of the world, however, in the US organisations are not obligated or required by federal law to offer paid sick leave. However, the Family and Medical Leave Act, established in 1993, enables eligible staff members of insured employers to take unpaid, job-protected leave for specified family and medical reasons (U.S. Department of Labour, 2020). Even though, organisations are not legally obliged to pay staff members for sick leave under federal law, some states require companies by law to offer sick leave. An example of this is the state of Massachusetts which permits five days of sick leave for employees (Foothold America, 2020).
Furthermore, in Sweden, members of staff who cannot work due to sickness, can normally obtain compensation for the full period that they are off work. At the start of the time off, a deduction to 20% of the compensation of the sick pay that you can receive during a normal working week (European Commission, 2020). In order to be eligible to receive sick pay from the employer, staff members must have worked for a minimum period of one month minimum or have worked continuously for fourteen days (European Commission, 2020). Workers who are off work due to sickness for more than a week must provide a medical certificate. In addition, for employees who are sick for more than two weeks, the Swedish Social Insurance Agency can provide a sickness cash benefit. In order to secure this entitlement, staff members must be absent for a minimum of a quarter of their normal working hours as a result of sickness. Whether employees receive this compensation is determined by their ability to work and not the severity of the sickness, as well as whether they are medically insured and providing a medical certificate that describes the sickness or injury (European Commission, 2020).
Coronavirus
In recent times, the Coronavirus (COVID-19) outbreak has had a detrimental effect on businesses around the world. It started in China and has infected people from one hundred and eighy five different countries. The ONS (Office for National Statistics) reported that more than a quarter of the 5,316 businesses surveyed have temporarily shut down or paused trading for the period 23rd of March to 5th April due to the COVID-19 outbreak (ONS, 2020). The virus has affected the operations of many organisations: many have seen a decrease in turnover and some organisations have even been forced to cease trading indefinitely.
Boeing “Body Blow”
Multinational corporation, Boeing, is one of the most prominent companies to be hit by the effects of the virus. The company told BBC News that they may have to cut up to 15,000 jobs, after the travel industry has been torn apart by the pandemic, while 10% of jobs will be cut over the organisation, Boeing conceded that the losses would be more extreme in certain divisions, for example, its commercial airlines (BBC News, 2020).
Most importantly, the workforces of many organisations have faced challenges due to the virus. More than half of respondents to The Opinions and Lifestyle (OPN) Survey said Coronavirus has affected their wellbeing (ONS, 2020). Full results of the survey responses can be obtained from the following link:
But the big question is, does the right to sick pay (that traditionally has only ever been available to employees), still apply amidst a global pandemic?
Well, ACAS has advised that employees and workers should receive any Statutory Sick Pay (SSP) due to them as of 13th March 2020 from their first day of isolation if the following applies:
They have Coronavirus
They have Coronavirus symptoms (fever, new continuous cough)
Someone in their household is showing Coronavirus symptoms
They have been told to self-isolate by a doctor (NHS 111)
They then must follow the UK and Scottish government guidelines for self-isolation. The individual must self-isolate for seven days and anyone else who lives in their household must self-isolate for fourteen days. Some employers may offer more than SSP, known as ‘contractual’ sick pay, as previously mentioned.
If an employer requires proof of sickness, then the workplace’s normal sickness reporting procedures should be followed. As normal, an employee can self-certify for the first seven days of sickness, without a sickness note from a doctor. If self-isolating for a period that exceeds seven days, then an online self-isolation note can be obtained from the NHS website (ACAS, 2020). The following link will take readers to the NHS self-isolation page, whereby they can request a self-isolation note:
Another factor that has come under question frequently amidst the pandemic, is whether probationary periods are still in place. Probation is commonly a multi month process, during which there is consistent evaluation and feedback of the employee by the employer. Formal probation audit meetings and Probation Reports, are finished at customary intervals, typically following two, five and eight months (Forestry and Land Scotland, 2020).
The point of the procedure is to give the two parties sufficient opportunity to evaluate whether they are appropriate for one another. By finishing effective reviews and highlighting areas of improvements, you are likewise forestalling circumstances where you need to dismiss staff during their probation period (Willis, 2019). Employees who are currently serving their probationary period have not acquired enough service to be able to bring a claim for unfair dismissal (which is 103 weeks’ for employees who started on or after 6 April 2012), but there is potential to bring claims for workplace discrimination and whistle blowing. The following story, involving Eileen Jolly, is an example of how costly discrimination dismissal cases can be for employers.
Age Discrimination
Eileen Jolly, a medical secretary (89) has been named as one of the oldest employees to successfully win an age discrimination claim in the UK. The elderly woman was awarded £200,000 by the NHS after being dismissed over claims she was not capable of operating a computer. She was said to have “catastrophic failure in performance” after becoming accustomed to “old secretarial ways”. Not willing to sit back and take the discrimination, she took her NHS trust to an employment tribunal. The Judge present, Andrew Gumbiti-Zimuto wrote: “There was evidence of the claimant’s training having been inadequate, incomplete and ‘on the job’ training was ad hoc and not directed” (Smith, 2019).
New Guidelines
Thankfully, however, new Coronavirus guidelines have stated that many individuals currently on probationary periods will have their probationary period paused or extended (Forestry and Land Scotland, 2020).
Furlough
What is also important to discuss, is that due to the outbreak, businesses have been forced to furlough many of their workers as this will allow them to take advantage of the governments Coronavirus Job Retention Scheme (CJRS). To furlough an employee means to temporarily suspend or layoff an employee, this is usually done without pay. This term is most used in US employment law and is not recognised within the UK. Therefore, the term left many workers confused when Rishi Sunak, Chancellor of the Exchequer, used the word ‘furlough’ in his Coronavirus Job Retention Scheme (Bernal, 2020).
The ONS reported that for those businesses who were still trading in the UK, 21% of staff had been furloughed (under the terms of the CJRS) from the period of 23rd of March to the 5th of April (ONS, 2020). The CJRS allows employers to claim 80% of their employee’s wages from the government, up to a maximum of £2,500 a month – this includes those working on zero hours contracts and flexible workers. This is a temporary scheme in place for four months starting from the 1st of March 2020 – depending on the circumstances, the scheme could be extended. This allows companies to furlough employees rather than dismiss them. It is important to note that if a worker is self-isolating, they cannot be furloughed and should receive SSP until they return to work.
The minimum time period for furloughing workers is three weeks and they are not permitted to rotate which of their employees are furloughed; this can be difficult if someone who is still working is required to self-isolate/falls ill. It is important to note that if a worker is self-isolating, they cannot be furloughed and should be receiving statutory sick pay or enhanced sick pay (if in their contract) until they return to work. Due to this, CJRS cannot be claimed by employers for these employees to ‘make up’ any statutory sick pay/ enhanced sick pay they are receiving.
Employees who are ‘shielding’ (those who have been contacted by the NHS and are required to self-isolate due to extremely high risk of getting very ill due to COVID-19) for twelve weeks are permitted to be placed on furlough. Employers who insist that vulnerable employees continue to attend work at this time, where the work cannot be done at home, could be considered to be breaching their duty of care. The following case displays the effects of a breach of the employer’s duty of care in the workplace (ONS, 2020).
In Walker v Northumberland County Council [1995] ALL ER 737, the pursuer worked in an especially unpleasant social work post for the Council. He had just endured a breakdown because of exhaustion and an absence of help from his managers. His manager gave confirmations that protections would be set up upon his arrival from sick leave so as to decrease the dangers of stress. The pursuer came back to work yet endured a second breakdown in light of the fact that the Council had neglected to take sensible consideration to forestall him experiencing mental wounds. The follower brought a case for harms against the Council.
Held: by the House of Lords that the pursuer ought to be treated as an essential victim who was qualified for damages because of the Council’s carelessness. The Council had returned him to his past (unpleasant) post in the wake of knowing about the primary breakdown and it was, thus, reasonably foreseeable that if the claimant was exposed once again to these upsetting conditions he would almost certainly, this would make him endure mental injury.
Amazon Workers Fight Back
The severity of the current circumstances is evident in the following news story.
Several Amazon distribution centre specialists over the US will not appear for work this week by phoning in sick, denoting the biggest nationwide protest so far against the organisation’s response to Coronavirus. Beginning on Tuesday 21 April 2020, more than 300 Amazon employees have vowed to remain at home. This is as a result of rising disappointment amongst employees as the organisation has neglected to give adequate PPE to staff, failed to execute ordinary temperature checks it guaranteed at distribution centres and would not permit employees to take sick leave (The Guardian, 2020).
Employees of the multinational tech company are demanding sick pay and the right to not be punished for utilising their right to freedom of speech. While there has been no formal action or resolution as yet, Amazon did issue the following statement (The Guardian, 2020):
“Nothing is more important than the safety of our teams. Our employees are heroes fighting for their communities and helping people get critical items they need in this crisis.”
However, if we do not see change soon, could this be the start of the global e-commerce’s deterioration? We sure hope not.
Readers can access the full article, published by The Guardian below:
Disney is also an organisation that has been hit significantly by Coronavirus and as a result, a Disney representative presented the following statement: “With no clear indication of when we can restart our businesses, we’re forced to make the difficult decision to take the next step and furlough employees whose jobs aren’t necessary at this time.” (Godfrey, K., 2020).
We encourage our readers to watch the video presented to gain a deeper understanding of just much of an impact this pandemic is having on employment worldwide:
Conclusion
In conclusion, Statutory Sick Pay (SSP), is a well-known facility available potentially to most employees throughout the UK. It has been in place, in its current form, since 1982, aiding those unable to work due to sickness and other health related issues, it is a hugely worthwhile employment right. Now, more than ever, we are (unfortunately) having to analyse such an employment right as a highly debated topic because of the Coronavirus pandemic. However, whilst the pandemic continues to spread rapidly, the UK is also offering protection to those workers who do not normally qualify for Sick Pay, in terms of University Credit, Contributory Employment and Support Allowance. Luckily for these individuals, the UK Government has stepped in and has extended SSP during the Coronavirus lockdown. Overall, it is safe to say that SSP has been of great help in relation to sick workers with income support and although its usefulness may not always be apparent, it is times like this we truly start to appreciate the value of such employment rights.
U.S. Department of Labor, 2020. ‘Family and Medical Leave Act’ [online]. Available at: https://www.dol.gov/agencies/whd/fmla [Accessed: 28th April 2020].
The issue of employability and job security amidst these challenging times, with reference to specific organisations.
Alistair Lee, Niamh Mackenzie, Fraser Morrison and Abby Roberts (edited by SJ Crossan)
The Coronavirus does not pick and choose who to target – everyone is at risk. Therefore, on March 23rd, the UK went into full scale lockdown, three days after the Government put in place restrictions on select businesses. This lockdown has had a detrimental effect on almost every business, and thus has affected their employees in turn. A few months ago, before the COVID-19 outbreak and the World Health Organisation declaring a worldwide pandemic, most people would never have heard of the word ‘furlough’. Now, it is on everyone’s lips. It is critical for organisations to deal with their staff in the correct manner when it comes to their job. If not, their livelihood is at risk and their family’s livelihoods are at risk, particularly if they cannot take advantage of the Government’s furlough scheme.
Some companies have understood this and dealt with their employees correctly and efficiently, while some most certainly have not. People do not forget. If an organisation comes out of this pandemic looking worse for wear, due to their negative actions, it certainly will not recover quickly – if ever.
Virgin is one of many companies to handle this situation extremely poorly. Richard Branson has never been particularly liked by the people of the UK, plus he owns an airline – one of the most disliked types of organisations due to their price hiking. Therefore, this pandemic could have been used to gain some trust back – instead, it has done quite the opposite. On March 26th, Virgin Atlantic Airways said they would reduce their daily flights by 80% amid the drastic decline in travel owing to the coronavirus pandemic. Like many organisations, this steep decrease in business led Virgin to look at where they could cut costs to try and save the business. They decided to do this through their staff. Employees at the UK airline have been forced to take eight weeks of unpaid leave over the next three months. Amid backlash from this decision, Virgin released this statement:
“An increasing number of countries are now closing their borders – most significantly, the US, where a travel embargo from the UK comes into force on Tuesday (17th March). Though this was expected, it has accelerated the sharp and continual drop in demand for flights across Virgin Atlantic’s network, meaning immediate and decisive action is needed… Today, Virgin Atlantic will put drastic measures in place to ensure cash is preserved, costs are controlled, and the future of the airline is safeguarded.” (The Street, 2020)
While this seems a fair and logical response on the surface, if you delve a bit deeper, you begin to understand why it is so horrific that Virgin are not paying their staff while they’re on leave due to COVID-19.
Virgin Atlantic boasts revenues of £2.8 billion, with the Virgin Group as a whole commanding revenues of over £19 billion. (Virgin Annual Report, 2018). In addition to this, Richard Branson has a net worth of $4.4 billion (Forbes, 2020). In 1971, Branson was convicted and briefly jailed for tax evasion. This experience has not changed his attitude however, since in 2013, he described himself as a ‘tax exile’ having saved millions in tax by ending his mainland British residency and living in the British Virgin Islands. (The Daily Telegraph, 2013). And it is not just him personally that is doing this – his entire business empire is owned by a complicated series of offshore trusts and companies. If he were to liquidate all the company’s assets, he would pay extremely little in tax.
When you consider all the above, does Virgin’s statement seem fair and logical now? A multi-billion-pound organisation owned by a multi-billionaire who lives on his own private island that can fetch up to $87,500 per day, asking for a £500 million bailout from the Government (funded by taxpayer money) just so they can pay their staff doesn’t seem particularly fair and logical.
Denmark, Poland and France have all refused to bailout tax haven-controlled companies. The UK should do the same – refuse to pay the £500 million and tell Richard Branson to dig deep into his particularly selective pockets.
Virgin are not alone, however, when it comes to receiving criticism for their approach to dealing with staff during these strange times. British pub chain, JD Wetherspoon have recently received a lot of backlash from their questionable approach to the COVID-19 pandemic. The chain insisted that it could not afford to pay its staff during the crisis until the government had reimbursed the company for their wages (Davies, 2020). Tim Martin, founder of the company, sent a video out to his employees explaining the situation and the approach that the company had chosen to take after the government had called for all pubs to be shut to reduce the spread of COVID-19 (Ng, 2020). The employees were told that they would only be paid for the hours that they had worked up until 22nd March 2020 and that no further pay would be given until the furlough scheme had been put in place. The government had announced that they would pay 80% of staff wages up to £2,500 (Munbodh, 2020). However, this left many employees worried, due to the fact this could take until the end of April (Davies, 2020). Martin told his 40,000 employees that if they needed a wage, then they should consider taking on work with Tesco (Munbodh, 2020), causing considerable anger from employees who felt that they were unappreciated and being “abandoned” by their employer. Not only were Martin’s employees left questioning when they would next receive a wage, but many of the company’s workers were even stripped of bonuses that they had already managed to achieve (Ng, 2020).
The company received a lot of backlash online for this approach to the situation, with many members of the public vowing to “boycott” Wetherspoons pubs in the future once they have reopened for business (Brown, 2020). Piers Morgan, co-presenter of Good Morning Britain, posted on Twitter “Don’t go to Wetherspoons,” in response to Martin’s attitude towards the Covid-19 Crisis (Ingate, 2020). One member of the public even responded to the company by leaving a message for Tim Martin by graffitiing one of the Chain’s many pubs, The Postal Order. The words “pay your staff” and “pay up” were sprayed onto the windows of the pub in red and white paint (Ng, 2020). Photos of the vandalised pub, which were shared online, received a lot of support from individuals who condemned Tim Martin for suggesting to his employees that they should take on employment with Tesco following the closure of his pubs (Ng, 2020). A strike movement was also formed by a group of Wetherspoons employees called ‘Spoon Strike’ and the Bakers, Food and Allied Workers Union (BFAWU) and demanded that the company give them full pay. In a statement released by Spoon Strike, they wrote “Whilst other companies such as Costa have promised their staff eight weeks fully paid, Wetherspoons have left over 40,000 people without their next pay date. With no means of paying for rent, bills or food, and no warning” (Ng, 2020).
Following the large wave of backlash that Tim Martin and his company received, Mr Martin later announced that the first payment for his workers under the government job retention scheme would be made on 3rd April ‘subject to Government approval, and weekly thereafter’ (Brown, 2020). However, many members of the public are still shaming Martin, who is supposedly worth over £40million (Munbodh, 2020) for his initial response to the crisis and continue to vow to “boycott” Wetherspoons pubs once they have reopened for business.
The impact on the employment market in the UK is not all negative, however.
One example of initiatives that have been employed to help protect workers is a free online training scheme for furloughed individuals. The Department of Education run initiative offers online training courses for workers who are furloughed in order to “ improve their knowledge, build their confidence and support their mental health so they have skills they need to succeed after the coronavirus outbreak” (BBC News, 2020). The hope is that it helps to mitigate some of the impact the crisis will have on a post lockdown employment market, by facilitating the growth of workers during the pandemic.
Regarding individual firms that are looking after their staff during the crisis, the Co-operative Group are a fantastic example. To show their appreciation for their key workers keeping shops stocked and the nation fed, they have rewarded over 7,500 staff with an extra week worth of pay in addition to doubling their staff discount. The hope is to help to ease the financial burden they face during lockdown and to reward staff for going “above and beyond” during lockdown (Derby Telegraph, 2020). This shows that not all employers are looking to shirk away from the issues surrounding their workers’ rights – some are bolstering them and trying to offer a more supportive and robust working relationship during these trying times.
Ford’s UK division have also been taking steps to protect their workers by considering the duty of care that they have towards them. Despite March normally being one of the busiest months of the year for car sales, Ford’s UK boss Andy Barratt prevented any of his dealerships from ordering new cars. Barratt stated that cash liquidity was important in these financially pressing times and in order to prevent mass furlough he insisted that the cash reserves were better use keeping staff employed. The firm have opted to pay staff until at least June, where they will review the situation and take necessary steps from there. This will protect the rights of employees and their financial security, with Ford stating that; “All dealers need to focus on, is keeping their people safe, keeping their business viable and the revenue they need in return to keep those things going.” (Chaplin, 2020). They have not only done this for financial reasons – the company recognised that there is a great level of stress put on workers in the months of April and March to shift all of this new stock but they decided it was more important to protect the mental and physical health of employees and as a result, they have instructed that staff should work from home where possible. This shows a great awareness of the duty of care that Ford have for their staff, taking action to support their financial wellbeing, in addition to physical and mental health of their staff in these uncertain times.
After the initiative of companies such as The Co-op and Ford, the UK staple that is Boots have followed suit.
Boots is one of the largest retailers in the UK, both in terms of revenue and number of shops. Boots have around 2,500 shops and employ over 63,000 people across the United Kingdom – these range from local pharmacies to large health and beauty shops.
Due to the recent COVID-19 breakout, many shops and retailers have been forced to shut. Like other pharmacy chains, Boots have been designated as an essential retailer which is why they have remained open during this worldwide pandemic. However, staying open opens a whole new can of worms – particularly when it comes to keeping employees and customers as safe as possible, all the time.
To make sure that Boots employees are fully protected, they have put many factors in place to protect and support their staff, to take care of their customers by providing a consistently high service, and to also protect their business. By taking these measures, it ensures a safe, secure employment through difficult trading conditions. Some of the measures that have been taken by Boots to comply with their duty of care for their staff and customers include:
Flexible hours to cope with increased demand
Closing stores for one hour each day to clean and sanitise surfaces
Plastic visors provided for staff
Masks/aprons/gloves provided
Workers always asked to remain two metres apart throughout the day
Maximum of 3 customers allowed in the shop at the one time to maintain social distancing
Perspex screens put up at counters.
Boots are in some ways in a different trading position than many other companies across the globe. Their role is to provide healthcare to customers and to make sure patients receive vital medical products. Their employees benefit from this, but in turn they also have to now work in difficult and unsafe conditions with the COVID-19 situation, so Boots have to make sure they provide as much personal protection to safeguard their employees and customers, and to let them continue to trade effectively.
Boots employees do not have the risk of being put on furlough or being made redundant. They provide an important service and their employees are classed as Front-Line Workers, who have the permission under Government guidelines, to carry on working at their normal place of work. Because of these conditions, Boots employees feel that they continue to have job security, and do not have the worry of losing their income as many others do, through these difficult circumstances.
Instead of closing stores and pharmacies, and putting employees in insecure positions, they have created jobs out of this situation. Due to the high demand of prescriptions being delivered to patients aged 60 and above, they have had to recruit more than 400 new drivers for the pharmacy delivery and collection service, where prescriptions are collected from doctors’ surgeries. This has been done to cope with unprecedented demand but overall it is a major benefit as many people may have been made redundant and are grateful of having the opportunity to take on a different role, whilst also helping to provide support for people in need. They have also created jobs in their warehouses and distribution centres due to a significant increase in its online business.
Conclusion
In the coming weeks, the lockdown measures may or may not be lifted. However, even if they are, there will be several restrictive measures put in place and thousands of businesses will still not be allowed to open. This means that organisations will need to continue to support their staff as much as possible, and if they are not currently supporting staff to the best of their abilities, they will need to start doing so. It is as simple as that. For what is a relatively short period of time to take a financial hit by paying staff in full, while not bringing in any revenue, it is a drop in the ocean when you consider the potential long term impact of millions of customers boycotting the business because of the way they treated their staff during this pandemic.
CopyrightAlistair Lee, Niamh Mackenzie, Fraser Morrison and Abby Roberts, 28 April 2020
I seem to be on something of a theme these last few weeks where my focus in the previous blog (and in this one) has been on agreements which are not enforceable in court.
In my last blog (Rock, paper, scissors …), I examined the historical, legal position in Scotland in relation to gambling agreements. These types of arrangements were – until the introduction of the Gambling Act 2005 – unenforceable in the Scottish courts on the basis that they fell into a category of agreement which was below the dignity of judicial scrutiny (sponsiones ludicrae).
It was with some interest then that the ongoing Covid-19 crisis should flag up another aspect of the law of contract which addresses situations where certain agreements are deemed to be unenforceable.
I am speaking of agreements where an individual volunteers to provide services, for example, to a charitable or community organisation. This type of arrangement is technically referred to as an agreement binding in honour only.
The well known UK retailer, Boots, has recently been criticised for its use of volunteers during the Covid-19 outbreak and accusations of exploitation have been flying around. The retailer placed advertisements for individuals to come forward to be trained as testers. This was all part of a UK Government initiative to encourage people to volunteer to help out during the crisis.
At first glance, there seems to be nothing wrong with what Boots is doing, but the retailer has been accused of abusing or exploiting the enthusiasm of volunteers to help out. The advertisements stated that individuals must commit to work at least 32 hours per week. This situation begins to sound less like volunteering and more about control. The Trades Union Congress and some employment lawyers have warned that Boots may be opening itself to legal action in the future. You may label an individual as a volunteer, but if you begin to treat him or her as a worker or even an employee, you may find that the relationship is not one of volunteer and recipient. In Scotland, this would an example of the doctrine of personal bar (or estoppel as English colleagues would say) in operation.
A link to the story about Boots as reported in The Independent can be found below:
When we think of volunteers, we do not often think of them as individuals who provide services to commercial companies, but rather charitable and community based organisations. Furthermore, UK National Minimum Wage legislation exempts charities from its provisions – not commercial organisations like Boots.
Genuine volunteers
Such situations arise where the parties (the volunteer and the recipient of services) clearly intend not to be bound by the agreement that they have entered. There is no intention in the minds of the parties to create a legal relationship. The arrangement will last as long as the parties find it convenient. Other side can withdraw from this arrangement at any time without penalty. The party who withdraws from the arrangement may find that their honour or integrity is called into question, but in the absence of legal sanctions, this is a situation that they can probably live with.
There are downsides to being a volunteer: they are not employees within the meaning of Section 230 of the Employment Rights Act 1996 and this means that if such individuals suffer less favourable treatment in the course of their involvement with the recipient, they may have limited legal redress.
Section 83 of the Equality Act 2010 makes it very clear that if a person wishes to pursue an employment related discrimination claim, s/he must be in ‘employment under a contract of employment, a contract of apprenticeship or a contract personally to do work’. The wording of Section 83 would, therefore, exclude genuine volunteers because such individuals are providing services to recipients under an agreement binding in honour only.
In X v Mid Sussex Citizens’ Advice Bureau (CAB) and Others [2012] UKSC 59, the UK Supreme Court affirmed the earlier decision of the English Court of Appeal in which the claimant (‘X’) had signed a ‘volunteer agreement’ to work at the Citizens’ Advice Bureau which was ‘binding in honour only’. This meant that ‘X’ did not have a contract of employment or a contract in which to perform services personally. This meant that ‘X’ was outwith the disability discrimination laws (now contained in the Equality Act 2010) and it was incompetent of her to have brought the claim. The Supreme Court, in a lengthy exposition of the effect of EU Directives, also considered whether there was an obligation placed upon EU member states to outlaw discrimination in relation to volunteers. The Supreme Court concluded that there was no such duty placed upon member states by the EU.
A link to the Supreme Court’s judgement can be found below:
Screen capture of an old style of written statement template by Seán J Crossan
In the UK, the beginning of April is always an important period for employment lawyers because the British Government and/or the Westminster Parliament typically introduce new laws which directly impact on people’s terms and conditions of employment.
There is no such thing as one document which contains all the terms of an employment contract – something that my students and members of the public have difficulty understanding at first. It is important to grasp from the outset that there are various sources of the employment contract which include, amongst other things:
The written statement of the main terms and conditions of the contract (as per Section 1 of the Employment Rights Act 1996)
Employee handbooks (e.g. available on employer’s intranet)
Employer’s policies and codes of conduct (e.g. disciplinary codes)
EU Laws, Acts of Parliament and statutory instruments (e.g. Employment Rights Act 1996, Equality Act 2010, TUPE Regulations 2006, Equal Treatment Directives)
Judicial precedent and the common law (e.g. Walker v Northumberland County Council 1 AER 737)
Today new rules come into force about the written statement of the main terms of employment. Previously, only employees were entitled to receive such a document which had to be issued by an employer within 8 weeks of the commencement of employment (as per Section 1 of the Employment Rights Act 1996). Now, an employer must issue a written statement to both employees and workers from or before day 1 of their employment or engagement. This is known as the principal statement and is a short summary of the most important parts of the employment contract.
A link to the UK Government’s website detailing these important changes can be found below:
A second statement – known as the wider statement – must be issued to the employee or worker within 8 weeks of the commencement of the contract of employment or engagement.
Together, both written statements will contain important information about the contract of employment, such as:
The employee’s name
The employer’s name
Date when employment commenced and period of continuous service
The rate of pay and how often the employee is paid
Working hours
Holiday entitlement
Sick pay entitlement
Pensionable service and details of employer’s pension scheme
Notice requirements
Job title or brief JOD description
Whether the job is permanent/temporary/fixed term
The location of the employee’s place of work
The existence of collective agreements and how they affect the contract
Arrangements for working outside the UK (if relevant)
Details of disciplinary and grievance procedures
Furthermore, as a result of today’s changes to the law, the written statement must also address the following matters:
The hours and days of the week that the employee/worker must work for the employer and whether they can be changed and the mechanism for doing so
Entitlement to any paid leave
Entitlement to contractual benefits which have not already been addressed in the written statement
Probationary periods (if relevant)
Training opportunities provided by the employer
The legal status of the written agreement
The written statement is not the contract of employment itself because no single document could possibly encompass all the terms of such an agreement. There is nothing to stop the parties adopting the statement as the contract of employment, but it is important to understand that it can be varied or altered as a result of legislative changes, court decisions and collective agreements.
As of today, entitlement to leave for bereaved parents is being introduced; increases to the National Minimum and Living Wages come into force; and increases to a range of statutory payments are also taking place. With all of this going on, it would be very difficult – if not impossible – for any written statement to express the totality of the employment contract in any meaningful sense.
Failure to issue a written statement
Section 38 of the Employment Act 2002 gives employees the right to pursue an Employment Tribunal claim against an employer for failure to issue a written statement. This type of claim would usually be brought by an employee as part of another claim against the employer e.g. dismissal or discrimination claims. In such an instance, the employee would state on the Tribunal application (the ‘ET1’) that the employer had failed to issue written terms. It is always worthwhile submitting this type of claim as part of the bigger picture of the employee’s grievance because an Employment Tribunal could issue an award worth up to 4 weeks’ wages.
Any employee who is dismissed by the employer for requesting their statutory right to receive a written statement will have the right to pursue a claim for unfair dismissal in terms of the Employment Rights Act 1996.
An example of an extract taken from an ET1 form can be seen below:
Fictional example of an Employment Tribunal claim by Seán J Crossan
Employment status
The right to receive a written statement was, previously, a very important indication of a person’s employment status i.e. whether they had a contract of service in terms of Section 230 of the Employment Rights Act 1996 – as opposed to a contract for services.
In the leading House of Lords’ decision – Carmichael v National Power plc [2000]IRLR 43, two women who were engaged on casual as required contracts as tour guides at the (now demolished) Blyth Power Plant in Northumberland were not entitled to receive written statements of employment because they were engaged under a contract for services. There was no mutuality of obligation between the parties in that National Power was not obliged to offer the women work and the two women, if offered work, were not obliged to accept it. With today’s changes to the Employment Rights Act 1996, the two women in Carmichael would now be entitled to receive a written statement because they were workers.
A link to the ACAS website which provides (free) access to blank templates for employers to generate their own written statement can be found below:
Today, the UK Supreme Court has decided, in a unanimous judgement, that Barclays Bank PLC is not liable for the wrongful and criminal actions of an independent contractor (a medical doctor) that it engaged over a number of decades – see Barclays Bank PLC v Various Claimants [2020] UKSC 13. This judgement overturns the Court of Appeal’s judgement of 2018 (see Barclays Bank PLC v Various Claimants [2018] EWCA Civ 1670).
The facts of the case
Barclays Bank hired a doctor, Gordon Bates, to carry out medical examinations of members of its staff and applicants for employment at the Bank. These examinations were carried out by Bates at his consulting room located at his private address. The doctor was accused of sexually assaulting 126 people during examinations carried out between 1968 and 1984. These incidents did not come to light until much later.
By this time, the doctor had died and there was no question of his professional indemnity insurance or his estate paying out compensation to his victims. Barclays Bank stated that the doctor was not an employee – he was an independent medical practitioner paid by the Bank to carry out a service as and when required.
Barclays Bank argued that on these grounds they should not be held liable for the doctor’s wrongful actions. In fact, the victims themselves did not claim that Bates was an employee of Barclays, but significantly they did argue that its relationship with the doctor was “akin to employment” and that the delictual act was sufficiently closely connected to the employment or quasi-employment. Bates was under the control of Barclays Bank; by using the services of Bates, the Bank had created the risk of the victims being exposed to his wrongful acts; The medical examinations were carried out on behalf of the Bank; and the Bank had the resources to compensate the victims who now had no practical means of obtaining damages from Bates.
The Court of Appeal
The case was first heard in the English High Court. The High Court decided that Barclays should be held liable for the doctor’s actions. They were benefiting from the service that he was providing and they had the financial resources to compensate the victims (this for organisations using independent contractors will be the really controversial and worrying part of the judgement).
Barclays appealed to the English Court of Appeal, but the decision of the High Court was upheld.
At paragraph 41 of the judgement, Lord Justice Irwin stated:
“The law of vicarious liability has been developed – has been “on the move” – in recent times, most notably in the five critical decisions of: E v English Province of Our Lady of Charity; the Catholic Child Welfare Society; Cox v Ministry of Justice; Mohamud v WM Morrison Supermarkets; and Armes v Nottinghamshire County Council.”
Significantly, Lord Justice Irwin went on to say (at paragraph 45):
“Moreover, it seems clear to me that, adopting the approach of the Supreme Court, there will indeed be cases of independent contractors where vicarious liability will be established. Changes in the structures of employment, and of contracts for the provisions of services, are widespread. Operations intrinsic to a business enterprise are routinely performed by independent contractors, over long periods, accompanied by precise obligations and high levels of control. Such patterns are evident in widely different fields of enterprise, from construction, to manufacture, to the services sector.”
The UK Supreme Court
Baroness Hale, who gave the unanimous decision of the Court, noted that the doctrine of vicarious liability is “on the move” and “how far that move can take it.”
Baroness Hale summarised the position of Barclays Bank in the following terms:
‘As Lord Bridge of Harwich stated in D & F Estates Ltd v Church Comrs [1989] AC 177, 208 (echoing the words of Widgery LJ in Salsbury v Woodland [1970] 1 QB 324, 336), “It is trite law that the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the course of the execution of the work”. The Bank argues that, although recent decisions have expanded the categories of relationship which can give rise to vicarious liability beyond a contract of employment, they have not so expanded it as to destroy this trite proposition of law, which has been with us since at least the decision of Baron Parke in Quarman v Burnett (1840) 6 M & W 499, 151 ER 509.’
Her ladyship went on to set out the legal argument of the victims of Doctor Bates’ wrongful actions:
‘The claimants, on the other hand, argue that the recent Supreme Court cases of Christian Brothers, Cox v Ministry of Justice [2016] UKSC 10; [2016] AC 660, and Armes v Nottinghamshire County Council [2017] UKSC 60; [2018] AC 355, have replaced that trite proposition with a more nuanced multi-factorial approach in which a range of incidents are considered in deciding whether it is “fair, just and reasonable” to impose vicarious liability upon this person for the torts of another person who is not his employee. That was the approach adopted both by the trial judge and the Court of Appeal in this case.’
In finding that Barclays Bank was not vicariously liable for Doctor Bates’ wrongful actions, Baroness Hale highlighted the following factors which had clearly influenced the Supreme Court:
Doctor Bates was never employed by Barclays
He was not paid a retainer by Barclays
He could refuse referrals from Barclays
He maintained his own medical practice and medical insurance (though whether his policy of indemnity would cover such wrongful acts was a moot point)
If he was an employee, he was employed by the local health authority on a part-time basis – and certainly not by Barclays
He was, therefore, an independent contractor in business on his own account as regards his relationship with Barclays
Barclays was just another client of Doctor Bates
Links to the judgement and the Court’s press release can be found below:
Governor Gavin Newsom of the US State of California declared a state wide emergency on Wednesday 4 March 2020 in order to counter the spread of the virus.
Please see a link below to an article in the Los Angeles’ Times concerning Governor Newsom’s announcement:
How are the recent developments in California linked to events in the UK?
It should be recalled that Governor Newsom signed into law Assembly Bill 5 of 2019 in January of this year. You don’t remember this? Well, Assembly Bill 5 is better known as the Californian Gig Economy law which, in effect, gives thousands of workers employment status. Significantly, this means that many of these affected individuals will now benefit from greater levels of employment protection – including entitlement to sick pay.
Now, think about this: had the COVID-19 outbreak occurred last year, many Californian workers would have had absolutely no entitlement to receive sick pay if such individuals were forced to self-isolate or take time off because they had been infected. No doubt many of these workers turned employees will be breathing a huge sigh of relief that they are now covered by Assembly Bill 5.
Turning our attention to the UK, the British Government has taken a less generous approach to the issue of entitlement to sick pay. True, employees and other workers who already benefit from entitlement to statutory sick pay (SSP) should now be able to claim this from day 1 of sickness absence. It should be emphasised that this is a temporary measure justified on emergency grounds.
Previously, statutory sick pay was payable only from day 4 of the employee’s absence until Prime Minister Johnson’s announcement in the House of Commons on Tuesday 3 March 2020.
Jeremy Corbyn, Leader of the opposition Labour Party, immediately asked the PM if zero hours workers and self-employed individuals would have this benefit extended to them. The PM’s response to Mr Corbyn’s question will have disappointed many of these individuals. No entitlement to statutory sick pay for them. The problem for these individuals is that they do not meet the eligibility threshold where they earn £118 per week (the Lower Earnings Limit).
There is also the small fact that employment status (which is linked to entitlement to sick pay) is defined by the Employment Rights Act 1996. Section 230 of the Act defines an employee as an individual who has a contract of service. Many employment rights flow from this status and this means that many individuals who are engaged on a contract for services will simply not be eligible to claim statutory sick pay.
A link to an article in The Mirror newspaper about the exchanges in the House of Commons between PM Johnson and Mr Corbyn about SSP entitlement can be found below:
… and yet, the UK Government’s thinking on this issue may be quickly evolving. On the BBC’s Question Time television programme broadcast on Thursday 5 March 2020, Matt Hancock MP, the UK Health Secretary said that people on zero hours contracts and self-employed persons should not be financially penalised for doing the right thing i.e. self-isolating themselves or being honest about having the virus.
It will be interesting to see how the story develops and what changes to UK employment law may follow as a result.
Seán Crossan's Scots Law 