Good work?

Photo by Maarten van den Heuvel on Unsplash

One of the consistent themes of my blog has concerned an individual’s employment status in the work-place – or the very real difficulties associated with the lack of such status.

Section 230(1) of the Employment Rights Act 1996 defines who is an “employee” in the following terms:

“… an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.”

As I have stated on more than one occasion, those who have a contract of service rather than a contract for services tend to be in a much stronger position legally speaking when it comes to a range of employment rights such as:

  • Paternity and maternity pay/leave
  • Statutory adoption pay/leave
  • Consultation rights in redundancy and TUPE situations
  • Entitlement to redundancy payments
  • Entitlement to sick pay
  • Minimum notice periods
  • Protection against unfair dismissal

The above are just some of the rights that people with employment status potentially can acquire depending on their length (or continuity) of service with their employer.

Those individuals with more insecure working patterns (e.g zero hours and/or casual workers) will almost never be in a situation to acquire such rights because it is almost always impossible for them to build up the necessary period of continuous service with the organisations to which they provide services. Typically, many of these workers are part of what has become known as the “gig economy” where the feature of employment contracts known as mutuality of obligation is absent.

Admittedly, the UK Government has attempted to begin to address the disadvantages facing “gig economy” workers by setting up the Taylor Review (which published its findings in July 2017). The final report made 53 recommendations concerning modern, employment practices:

https://www.gov.uk/government/publications/good-work-the-taylor-review-of-modern-working-practices

The UK Government’s official response to the Taylor Review was entitled “Good Work” and a link to this document can be found below:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/679767/180206_BEIS_Good_Work_Report__Accessible_A4_.pdf

The desire to extend workers’ rights seems to be something of a trend as, in April 2019, the European Union also ratified a new Directive with the working title Transparent and predictable working conditions in the European Union. This Directive (for the remaining EU 27 member states) will certainly give casual workers greater legal rights, but given the current uncertainty over the UK’s Brexit position, it remains to be seen if this measure will ever be implemented in this country (for more information, see my blog entitled “The gig economy” which was published on 19 April 2019).

One of the most significant new rights that the UK Government is proposing to extend to non-employees is the right to sick pay from day 1 of their service. It is calculated that this reform (if implemented) will benefit some 2 million workers.

A link to how the story was reported by The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.160719/data/9005291/index.html

Although employment law is a matter reserved to the Westminster Parliament, the Scottish Government has established its own Fair Work Convention with the express aim:

“… that, by 2025, people in Scotland will have a world-leading working life where fair work drives success, wellbeing and prosperity for individuals, businesses, organisations and society.”

A link to the Convention’s website can be found below:

https://www.fairworkconvention.scot

Copyright Seán J Crossan, 22 July 2019

The gig economy

Photo by Austin Distel on Unsplash

On 16 April 2019, the European Parliament adopted measures in a new European Union Directive that will give workers providing services in the so called gig economy greater legal protection. The Directive will not apply to those individuals who are genuinely self-employed (see previous Blog: “Hello, I’m Lorraine and I’m definitely self-employed” published on 22 March 2019).

The final text of the Directive was adopted with 466 votes to 145 and 37 abstentions. The EU Council of Ministers had already approved the measures.

The EU member states will have three years to put the rules into practice.

The new Directive has a working title of the Transparent and predictable working conditions in the European Union. The Directive will eventually repeal Council Directive 91/533/EEC and it has been introduced using the Ordinary Legislative Procedure of the EU (formerly the Co-decision procedure).

Council Directive 91/533/EEC of 14 October 1991 related to an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship. Note the wording of this Directive title: it contains the key term of ’employees’, so casual workers were most definitely not covered by its provisions.

Member states will have 3 years in which to implement the new Directive.

Typically, in the popular imagination, gig economy workers are personified by the likes of Uber taxi drivers and Deliveroo couriers. In comparison to employees, gig economy workers tend to lack job security and have far fewer employment rights. Unlike employees who have a contract of service, gig economy workers have a contract for services (a key distinction in employment law).

In a press release issued via the official EU website (Europa), the main objectives of the new Directive are listed:

  • Basic rights (i.e. a floor of rights) for workers in casual or short term employment
  • Working conditions must be clearly stated on Day 1 of employment, and no later than 7 days in permitted circumstances
  • Limiting probationary periods to a maximum of 6 months

A link to the EU press release can be found below:

http://www.europarl.europa.eu/news/en/press-room/20190410IPR37562/meps-approve-boost-to-workers-rights-in-the-gig-economy

A link to an infographic outlining the key objectives of the new Directive can be found below:

http://www.europarl.europa.eu/news/en/headlines/society/20190404STO35070/gig-economy-eu-law-to-improve-workers-rights-infographic

The Independent newspaper also reported the new Directive in its edition of 18 April 2019.

A link to the article can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.180419/data/8874676/index.html

The new Directive is firmly part of the EU’s Social Pillar which was itself adopted at Gothenburg, Sweden on 17 November 2017.

As European Commission President, Jean-Claude Juncker said at the time of the adoption of the Social Pillar:

“Today we commit ourselves to a set of 20 principles and rights. From the right to fair wages to the right to health care; from lifelong learning, a better work-life balance and gender equality to minimum income: with the European Pillar of Social Rights, the EU stands up for the rights of its citizens in a fast-changing world.”

 https://ec.europa.eu/commission/priorities/deeper-and-fairer-economic-and-monetary-union/european-pillar-social-rights_en

Brexit Alert!!!

At the moment, the UK has committed itself to leave the EU. The latest deadline for doing so is 31 October 2019. Will a future UK Parliament or Government choose to implement the provisions of the Directive if this country is an ex-member state of the EU? That really depends on the type of relationship that this country has with the EU 3 years from now. Any future trading agreement with the EU may contain provisions about minimum employment protection laws. We will just have to wait and see what happens. It seems rather sad that when the EU is passing a very progressive measure, the UK has decided to leave the organisation.

Copyright Seán J Crossan, 19 April 2019