Briefing Notes w/e 16 November 2018

by John Wood | November 16th, 2018

Another case on workers

In the latest instalment of cases looking at employment status, the EAT has upheld a Tribunal decision that drivers for Addison Lee were workers for the purposes of the Working Time Regulations 1998 and the National Minimum Wage Act 1998.  

Mr Lange, Mr Morahan and Mr Olszewski worked as drivers for Addison Lee who run a professional private hire firm.  The drivers entered into a Drivers Contract with Addison Lee, were provided with a guidance document when they started and were also expected to follow a code of conduct and a set of driver guidelines. The majority of vehicles used by drivers were hired by them from an associated company, with drivers told that they were representing the company when driving.  Each driver was also given a hand-held computer which they would login to and which would automatically allocate available jobs. Drivers were expected to accept jobs sent to them - if they did not, they had to provide an acceptable reason or else would be referred to a supervisor and could be subjected to sanctions, which included them being removed from the system. 

The EAT agreed with the Tribunal that there was an overarching agreement between Addison Lee and the drivers – they were not genuinely independent contractors and the Tribunal had been entitled to consider the reality of the situation between the parties rather than just the wording of the agreement.  The EAT was also satisfied that the Tribunal had been entitled to conclude that the drivers were workers in any event, as when they were logged on to Addison Lee’s system they were at their disposal. 

This is yet another case in the growing body of case law against the so called “gig economy”.  Given the string of recent cases, and the recommendations of the Taylor Review last year, it seems that the government will have to consider what should be put in place to address the situation.  In the meantime employers should think carefully about any agreements they have and whether they truly reflect the relationship with the individual. 

Inquiry into Non-Disclosure Agreements

Following its previous inquiry into non-disclosure agreements in cases of sexual harassment, the Women and Equalities Committee has this week announced it is launching a wider inquiry into non-disclosure agreements in harassment and discrimination cases.   

The previous inquiry made recommendations to the government to address the inappropriate use of NDAs and the Committee is now seeking views as to whether NDAs should be banned or restricted in cases involving discrimination and/or harassment.  This is particularly topical at the current time following the use of parliamentary protection to circumvent a non-disclosure agreement, in a case where the employee had apparently received detailed advice on its affect.  Whilst we are unlikely to see any immediate changes as a result of the inquiry, it could eventually lead to a shift in the conditions regulating such agreements.

Tribunal Fees

Following the recent report into Tribunal caseloads, which showed a huge rise in the number of claims being brought, there have been reports that the Ministry of Justice is considering reintroducing Tribunal fees.   Whilst there are no details as to what any new fees system might look like, the MOJ are apparently confident that they can strike a balance which will ensure that Claimants are not denied access to justice.  We will keep you updated on this as and when we have any further news.