Workers’ rights and working practices have been reviewed by Matthew Taylor, and his Good Work report was published on Tuesday 11 July 2017. He proposes reform but not a radical overhaul.
The new working landscape and risk of exploitation
In his report Taylor recognises that the labour market is changing with self-employment on the up and new business models in operation. The platform companies, such as Deliveroo and Uber, have altered the working landscape – and he suggests that our employment law framework needs to adapt as a result. Taylor also acknowledges that it is important to ensure that workers are not exploited.
The gig workers have had a tough time. Although work status has always depended on what’s happening in practice and not what’s written on paper, some platform companies have relied on bogus self-employment contracts to deter individuals from questioning their rights. Deliveroo even had a clause in its contracts banning couriers from challenging their employment status. The clause was eventually removed – and would have been unenforceable anyway.
The concerns for zero-hours workers have been slightly different. While people working in the gig economy tend to be able to choose the hours they work zero-hours workers on temporary contracts are often at the beck and call of the businesses. They invariably don’t know from day-to-day when they will have to work.
Matthew Taylor’s recommendations
Taylor’s recommendations include, among other things:
a) Renaming the worker category “dependent contractor”;
b) That to come within the new “dependent contractor” category there should no longer be a requirement for personal service but there should be a greater emphasis on control;
c) Considering National Minimum Wage (NMW) piece rates for gig workers based on output/gigs;
d) Providing more information for agency workers and closing the loophole that allows agency workers to opt out of equal pay as against permanent members of staff doing the same job;
e) Agency workers should be given a right to request a direct contract with the end user after 12 months;
f) People on zero-hours contracts should have a right to request fixed hours contracts after 12 months; and
g) Streamlining the process for determining employment status, waiving tribunal fees for that part of the process and reversing the burden of proof so that that the business has to prove that the individual is not entitled to workers’ rights.
Are the proposals sensible?
It will not be easy to redefine/clarify employment status. Currently, the employment status definitions do allow the Courts to take various factors into account and it might be unwise to be too prescriptive. For example, in the recent Uber case, the employment tribunal held that two drivers were workers rather than self-employed. In making their decision, the tribunal did consider the control that Uber exerts over its drivers and found that the drivers were not in business themselves. It’s far from clear what the new definition of “dependent contractor” would be and how it would say determine the status of the Uber drivers.
Many of Taylor’s recommendations do make sense. Making it easier for people to get clarification on their work status is sensible. Likewise, ensuring that gig workers get minimum pay based on the work undertaken/gigs but not for when they are on standby in quiet periods is reasonable. Giving people on zero-hours contracts a right to request fixed hours after 12 months and offering a similar right for agency workers to get direct contracts would provide more protection to those in insecure work. But it may not be too hard for employers to turn down such requests.
Some of you may feel that Taylor’s proposals don’t go far enough to protect people doing casual work. However, coming down too heavily on the businesses offering work opportunities could be counter-productive.
If you need any advice on employment status or require assistance on other employment law issues please call 0203 797 1264.