Briefing notes w/e 4 January 2019

by John Wood | January 4th, 2019

Good Work Plan 

Following the Taylor Review of Modern Working Practices the Government has announced its Good Work Plan which proposes a number of changes to employment law. 

The key changes proposed include: 

• a right for workers and employees to be provided with a statement of terms and conditions from the first day of work; 

• bringing consistency to the employment status tests for employment and tax purposes; 

• providing that that a break of up to 4 weeks will not break continuity of service; 

• employers being banned from making deductions from staff tips; 

• a right to request a fixed pattern of working after 26 weeks’ of working a non-fixed pattern (similar to the right to request flexible working). 

The Government has laid a number of statutory instruments to address some of the proposals although, in reality, the changes do not seem to tackle the much publicised concerns about zero hours contracts. We will provide further updates on the changes once we have further information. 

Worker Status 

By a majority decision, the Court of Appeal has upheld the decision of an Employment Tribunal that Uber drivers are workers for the purposes of the Employment Rights Act 1996, National Minimum Wage Act 1998 and the Working Time Regulations 1998. The Court held by a majority decision that the relationship proposed within the contractual documentation, namely that drivers had a contract with the passengers, was unrealistic and artificial and could therefore be set aside. It considered that the drivers should be classed as working during any period where they were within their territory, had the Uber app switched on and were ready and willing to accept trips. Lord Justice Underhill gave a dissenting view to the majority decision and did not consider that any of the facts found by the Employment Tribunal supported the proposition that the drivers were not performing their services to passengers. Even if they were workers, Underhill also disagreed with the period classed as working time – in his view they would only be working form the point they accepted a trip. The Courts decision is perhaps unsurprising given the general criticism of the “gig culture” although Uber has been given leave to appeal to the Supreme Court, so there could yet still be a twist in the case. 

Right to statement of terms 

In the case of Stefanko and others v Maritime Hotel Ltd the EAT considered whether an employee had a right to a statement of particulars, even when their employment had been terminated within 2 months. The Claimants were employed as waiting staff but were never provided with a statement of particulars. When they objected to persistent shortfalls in their wages, late payment of monies and falsification of their wage slips they were summarily dismissed. The Second Claimant had been employed for 6 weeks at the point of her dismissal. The EAT determined that, whilst sections 1-7 of the Employment Rights Act 1996 did not apply where employment lasted for less than 1 month, that had been overlooked by the Employment Tribunal. As such, the EAT found that the Second Claimant had been entitled to receive her statement of particulars within two months, regardless of the fact her employment had come to an end within that period. Consequently she could be awarded compensation for the failure to be provided with them.