Employment Law Lecture 1 & 2 PDF

**Employment Law: Lecture 1** **The UK Labour Market** - Very flexible labour market - 63% are full-time employees, but shift towards more flexible work - 26% are part-time, 15% are self-employed - Increasing variety of employment status **Employment Status** **'Employee', 'Worker', a...

**Employment Law: Lecture 1** **The UK Labour Market** - Very flexible labour market - 63% are full-time employees, but shift towards more flexible work - 26% are part-time, 15% are self-employed - Increasing variety of employment status **Employment Status** **'Employee', 'Worker', and 'Self-employed'** - All employees are workers **[BUT]** not all workers are employees **Employment Status: Why does it matter?** - Issue arises when a business says you're an employee and you're actually a worker (and vice versa) **Employment Status** - Legislation isn't ideal so need to look at case law **Sham Contracts** Autoclenz v Belcher \[2011\] UKSC 41 - Car valets in Derby - 'the subcontractor hereby confirms that he is a self-employed independent contractor' - They signed this contract - **BUT** full-time work; since 1991; uniform & materials provided by Autoclenz - **[Held]**: relative bargaining power of parties must be taken into account - 'the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part' (para. 35) - Need to look beyond mere provision of the contract Employee/worker is always going to be at a disadvantage in a negotiation **Determining Employee Status** A screenshot of a computer screen Description automatically generated 3 essential things to look for: - Personal service - Mutuality of obligation - Element of control **Personal Service** - Where there is a contract for self-employment (services), it isn't essential that those services are provided personally - Businesses try to be clever and insert a substitution clause that the services can be delegated - Sub clause **Mutuality of Obligation** - **2 way obligation -- business obliged to provide work, and employee is obliged to work, and the business is obliged to pay for said work** - Stringfellow Restaurants v Quashie (stripper) - Considered employment status of a dancer - Agreement stated dancers were independent contractors (ie self-employed) - Was paid by the customers as opposed to the strip club itself - Rota system, holidays had to be booked - Suggests elements of control - Key factor: No wage paid, but payment by customers via "Heavenly Money" vouchers, subject to deductions by the club - Court of Appeal: Accepted ET decision that there was **no mutuality of obligation** - economic risk lay with the dancers - She wasn't an employee so **[couldn't]** receive those benefits **Determining Employee Status** **Limb (b) Worker Status**  **The gig economy and worker status** Gig economy -- short term contracts -- freelance work etc *Aslam v Uber BV* - Uber always treated employees as self employed - Therefore, benefits of being an employee wasn't given - Uber resorted to "fictions, twisted language and even new terminology" - The terms "do not correspond with the reality of the relationship" - Drivers are workers under s 230(3) ERA 1996 - Drivers entitled to Minimum Wage - EAT, Court of Appeal and Supreme Court agreed - Impact on "gig economy"? **Determining Employment Status: You Advise** - In relation to each scenario, work out whether you think the individual is: - an employee. - a worker; or - self-employed. **Determining Employment Status: You Advise** **Answers: Worker, self-employed, employee** **Ask Ishan for photos** **Taylor Review** - Need greater clarity in the legislation, rather than current "minimalist" approach - Need to clarify distinction between "worker" and "self-employed" -- new category of "dependant contractors"? - In applying tests, more focus on "control", less on "personal service" - Next steps? Employment Law Lecture 2: Atypical Workers **Atypical Workers DIFFERENCES & DISTINCTIONS** - **Zero-hours contracts** - **Agency workers** - Fixed-term workers - Part-time workers **Zero-Hours Contracts** - A contract which **does not specify** working hours - *"We are under no obligation to provide work to you at any time, and you are under no obligation to accept any work offered by us at any time"* - The manner of the work is not mentioned in the contract - Only paid for the hours you work - Flexibility for employers and staff? - Often problematic for staff - Employment status? -- *Pulse Healthcare v Carewatch Ltd* \[2012\] - Key example for why tribunal will dig deeper - Worked in the care industry - Worked rustic hours - Working with critical care patients that were disabled - ET workers were employed under a global contract - Working regular full time hours and therefore full time employees - Taylor Review Recommendations - Workers under 0 hour contracts should have a right after 26 weeks to have the existing right of flexible working - If done with genuine intent, zero hour contracts can have mass benefits - Avoid mutuality by stating whether a contract is zero hours or not **[The Workers (Predictable Terms and Conditions) Act 2023](https://www.legislation.gov.uk/ukpga/2023/46/enacted)** - Recently received Royal Assent and is expected to come into force in around September 2024. - Aimed at workers on Zero-hours contracts & other atypical working patterns. - Act ***[may]*** apply where a contract specifies core hours but states they can be varied or may even apply to the common requirement of working such hours as are required to fulfil the role. (*Fixed term contracts of up to and including 12 months are presumed to lack predictability.*) - The Act will provide workers who work flexible hours with the **right to request a predictable working pattern provided the following criteria is met by the worker:** - They must have been in employment/service for at least 26 weeks (note: the exact length of service is to be confirmed but is expected to be 26 weeks); - There is a lack of predictability regarding any part of their working pattern, for example if they are on a zero-hours contract and do not have a guaranteed number of hours; - The request relates to a change in their work pattern, (such as the number of hours worked, the days of the week worked, the times worked, and the length of the contract); - The purpose of the request is applying to achieve a more predictable work pattern; - The worker has made no more than two applications/requests in the last year. - [SEE: Code of Practice on handling requests for a predictable working pattern (draft) \| Acas](https://www.acas.org.uk/about-us/acas-consultations/code-of-practice-predictable-working-pattern-2023/draft-code) **Agency Workers: WHO is the employer?** **James v London Borough of Greenwich** - James supplied by an agency to carry out work for the local authority (housing department) - Worked for a while + employed through the contract to the local authority - Subject to a degree of control to the agency as agency required her to fill out time sheets - She was absent for 2 months on sick leave - Didn't contact local authority -- no sick pay but no need to - Returns from sick leave, to find another agency worker doing the work she was doing - Try to claim unfair dismissal - EAT: - It will be **rare** to find employment contract with **end-user** - Also, exceptional to find employment contract **with the agency** - CA: upholds EAT approach, implicitly curtailing earlier caselaw - Subsequently followed: *Smith v Carillion* - **Law & The Atypical Worker** **Agency Worker Regulations 2010** - Agency worker An individual supplied by a **[temporary]** work agency to work temporarily under the supervision and direction of the hirer - Regulation only covers when an agency worker has a contract with and paid by the agency, **[NOT]** the hirer - Equal Treatment in 'basic working and employment conditions' - **Some rights from day 1** -- canteen, childcare, vacancy information - Have to have the same basics that everyone else has for the employer - **Others from week 12** -- pay, annual leave, rest breaks - Higher level of quality for pay - After 12 weeks, NOT before - Rights NOT given to key areas such as pensions, maternity/paternity leave, redundancy **Liability for breach?** - Agency is not liable where it acted reasonably on the basis of info from the end-user (liability shifts to end-user) - If part time worker is doing the same work as a full time worker, and receiving less benefits, then anything that makes them less equal (e.g., less pay) = **A BREACH** - **[Defence]**: If the employer can prove the difference in treatment is justified on objective grounds, not in breach - Hard to prove **Fixed-Term Employees Regulations 2002** - Apply **ONLY** to Employees - Prohibits less favourable treatment of fixed-term staff - Presumption of conversion of fixed-term contract to permanent status **after 4 years** (upon renewal) - *Unless* justified on objective grounds **Employment Status: *Why does it matter?*** **TODAY'S ACTIVITY** - *Ready To Test Your Understanding of Atypical?* - **Activity** - Rachel is a University student and has worked part-time at PoundWorld for the last two years. - There are no set working hours, but she typically works 8 hours per week. At Christmas, she often works 40-50 hours per week, but in summer, she may be given no work at all. - Her contract states that she is "self-employed" and that if she is unable to attend work, she may send a substitute in her place. - She has recently realised that she is being paid less than minimum wage, and is not given a holiday entitlement. - **Advise Rachel on her employment status and rights** - ***For More Information....*** - ACAS Report On Challenges of Atypical Workforce - [ACAS aint-that-typical-everyday-challenges-for-an-atypical-workforce.pdf](file:///C:/Users/przychoe/OneDrive%20-%20University%20of%20Birmingham/Documents/ACAS%20aint-that-typical-everyday-challenges-for-an-atypical-workforce.pdf) - ACAS Report On Zero Hrs Contracts - zero-hours-contracts\_2013-myth-reality\_tcm18-10710.pdf (cipd.co.uk) - Resolution Foundation Report On Impact of Agency Workers - [Secret-Agents.pdf (resolutionfoundation.org)](https://www.resolutionfoundation.org/app/uploads/2016/12/Secret-Agents.pdf) - TUC Report On The Rise of Job Insecurity In Britain - [Report title (tuc.org.uk)](https://www.tuc.org.uk/sites/default/files/Living_On_The_Edge_2016.pdf) [Chapter Readings: Page 33 -- 67] **Contract of Employment** No legal requirement for contract to be in writing **Working Time Regulations 1998** The Regulations provide (reg 2) that, in relation to a worker, 'working time' means: \(a) any period during which he is working, at his employer's disposal and carrying out his activity or duties; \(b) any period during which he is receiving 'relevant training' (defined as excluding training provided by an external provider); and \(c) any additional period which is to be treated as working time under a relevant agreement On-call time will be working time when a worker is required to be at his place of work -- when a worker is away from the workplace when on-call, and accordingly free to pursue his leisure activities, on-call time is not working time In the **Jaeger case** the ECJ held that on-call time spent at a hospital was working time, even though the doctor was allowed to sleep when not required all three criteria in (a) were met Uber BV v Aslam SC upheld tribunal's decision -- working time included all time when drivers were logged into Uber app + ready and willing to accept trips \(i) A lunch or rest break spent at leisure **will not be working time**, although a working lunch would be \(iii) Time spent working abroad will be working time \(iv) Time spent travelling to and from a place of work is unlikely to be working time as a worker will probably **neither be working nor carrying out his duties** **but** a worker may well be doing both if he is engaged by travel that is required by the job (see Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL (Case C-266/14)). **Working time includes any period during which the employee is in work, at the employer's disposal (ie legally obliged to obey its instructions) and carrying out his activity or duties for that employer (see East v Valentine (UKEAT/0325/16)).** Regulations will apply to individuals over the minimum school leaving age who can be categorised as 'employees' (ie those working under contracts of service or apprenticeship) plus a wider group who undertake to perform personally any work or services (eg freelancers) Of course there are exceptions to the above **Maximum weekly working time -- Reg 4** The general rule is that a worker's working time (including overtime) in any reference period shall not exceed an average of 48 hours for each seven days Employer has to take reasonable steps to protect workers' health and safety 'Reference period' 17 weeks As long as the employee hasn't worked more than the average in 17 weeks, then the rules aren't breached Reference period can be extended to a period of 52 weeks but not exceeding it **Average working time** Calc (A+B)/C A -- Total number of hours of working time worked by the worker in that period B -- Total number of hours worked after the end of the reference period and ends when the number of days in that subsequent period on which the worker has worked equals the number of excluded days during the reference period C -- number of weeks in the reference period A screenshot of a black and white math Description automatically generated *Worked example* Excluded days: 'Excluded days' means days comprised in--- \(a) any period of annual leave taken by the worker in exercise of his entitlement under regulation 13; \(b) any period of sick leave taken by the worker; \(c) any period of maternity, paternity, adoption or parental leave taken by the worker; and \(d) any period in respect of which the limit specified in paragraph (1) did not apply in relation to the worker by reason of the fact that the employer has obtained the worker's agreement as mentioned in paragraph (1).