It’s been another year of significant change throughout the employment landscape, with legislative developments presenting new considerations for business owners and their HR teams. Here, Rafia Ahmad, senior solicitor at ESP Law, reflects on what she believes to be the five key learnings from 2018…
- Employment status remains difficult to interpret
Employment status was always going to remain a hot topic as 2018 unfolded. Uber’s long struggle continued in the Court of Appeal in late October, in light of the findings of the Tribunals in in Aslam v Uber BV. The Tribunals have thus far found that Uber’s taxi drivers are ‘workers’, contrary to Uber’s position that they are self-employed drivers and Uber is simply a digital platform that they use to do their job. By attaining worker status, 60,000 Uber drivers now have potential claims for holiday pay and minimum wage. Likewise, in Pimlico Plumbers v Gary Smith, the Supreme Court found in June 2018 that – despite having a self-employed contract – Mr Smith was also a worker and similarly entitled to employee rights.
The difficulty lies in interpreting this complex area of law – particularly in light of the growing gig economy – and each a case is fact-specific. Tribunals look at where control lies in the relationship. For example, whilst Mr Smith was on a self-employed contract, he was also required to wear a Pimlico branded uniform and drive a liveried van; he had to carry a Pimlico ID; and he was able to swap jobs with other Pimlico plumbers – akin to swapping a shift with a colleague. The Supreme Court was therefore entitled to conclude that Mr Smith was a worker.
It is therefore prudent to take legal advice concerning employment status, particularly for businesses which rely on a flexible workforce.
- What about back-pay?
To continue with the employment status theme, the question many organisations have been left asking in 2018 is, “What now?”
In the case of The Sash Window Workshop and another v King, in late 2017, the ECJ agreed that Mr King should have been paid annual leave. However, employers have been left waiting, 12 months on, to learn how far the back-pay liability can stretch. Mr King could be entitled to compensation for the full length of his 13 years’ service, but in theory, for other workers/organisations, claims could go as far back as 1996, when the original Working Time Regulations came into force.
The decision, which lies with the UK courts, is imminent, and the impact could be staggering. Whilst employers have no control, of course, over the outcome, the message is clear – be extremely considered, moving forward, surrounding the benefits and basic rights afforded to the workforce. Arguably this is something more businesses are considering anyway, less because of legislative obligations and more because it helps attract and retain talent when the labour market is tough.
- Shared Parental Pay frustrations rumble on
The considerably low number of families taking advantage of Shared Parental Leave has been frequently debated throughout 2018, not least because – despite predicted uptake levels of 8% when the scheme was introduced – figures as low as 2% have been reported.
It is perhaps too early to comment but the Government’s Share the Joy campaign – launched in February – appears to have had little effect. The reasons for the limited success of SPL are potentially multiple, with stigma, lack of awareness and financial constraints just some of the factors at play. But, with regards to the last point specifically, it could be argued that not much will change given the outcome in the case of Ali v Capita Customer Management.
The EAT ruled that it is not discriminatory to refuse a new father enhanced pay while on shared parental leave, irrespective of any enhanced maternity pay that the mother may receive. The outcome has been referred to the Court of Appeal, but for the time being this admittedly surprising result is likely to do little to address the SPL decisions that families take.
It would be impossible to reflect on 2018 without a nod to GDPR – undoubtedly one of the most talked about step-changes in data protection legislation, ever. Whilst, in truth, many of the recommended practices have existed for some time, there is now certainly a newfound degree of clarity, debate and obligation imposed on businesses.
Whilst any complaints arising from a GDPR breach will be lodged with the ICO, employers need to be more mindful of the consequential breakdown of colleagues’ trust and confidence. Plus, if a breach relates to a claim that they could take to a tribunal, for constructive dismissal for example, the considerations are even more acute. Employees are also lodging an increasing number of data subject access requests, for instance, either during or following their dismissal. If any personal remarks from a line manager are found to have influenced the exit decision or the employee relations status, this could be a conversation the organisation wished they weren’t having. Transparency and ethics are certainly paramount – as well as keeping all data secure!
- The impact of #MeToo
In the year that the #MeToo movement swept through the media, the number of current and historic sexual misconduct complaints continued to rise throughout all walks of the employment landscape. Individuals are being encouraged to be vocal about harassment and bullying of any kind, which must act as one of the most fundamental learning points for employers from 2018 – they are obliged to act and take a complaint seriously if it is brought to their attention. And they need to take more proactive steps to ensure that, culturally, they convey and adopt a ‘no tolerance’ approach. From training and communication, to the actions taken if a complaint is lodged, everything matters, particularly when the ethics of non-disclosure agreements is coming into question. This issue is very much in the spotlight, and that spotlight is only going to get brighter.
After studying law at Cambridge University, I trained at leading national law firm Mills & Reeve, qualifying into their employment team in 2002. I have extensive employment law experience, gained through advising both employers and employees on a wide range of issues, across an array of sectors – including but not limited to finance, education, hospitality, transport and retail. This diverse experience means I am ideally placed to provide advice in relation to professional conduct and regulatory matters.
I am now a senior solicitor at ESP Law, part of ESP Group – a very different employment law firm and HR consultancy business, with our own in-house legal and HR experts. Taking pride in our reputation for delivering sensible, straight-talking and practical advice – at the same time as being approachable and supportive – I am passionate about the way ESP works with its customers. By building on trusted relationships and providing prompt support at the earliest stage of any issue, we help ensure that sound commercial decisions are taken.
The vision for our business was to deliver an exceptionally personal, yet cost-effective service that truly meets the evolving needs of modern and forward-thinking HR teams and their organisations. I’m lucky to be among a team of very talented employment lawyers who work hard day in, day out, to make this vision a reality.