In today’s sharing economy, do we
share the same views on workers’ rights?
With
the success of ride hailing app Uber – a pioneer of the new ‘sharing economy’ –
comes a conundrum, according to Tayside solicitor and estate agent Miller
Hendry: What happens when society doesn’t share the concept of workers’ rights?
American-born
company Uber, which operates in 13 U.K. cities including Glasgow and Edinburgh,
has won attention for revolutionising the taxi business worldwide. But it is
now grabbing headlines for different reasons, following legal action by drivers
claiming workers’ rights. And it’s a problem that other employers could face as
they rely on ever-flexible workforces made up of consultants, contractors and
freelancers.
The
GMB Union brought the action on behalf of a group of Uber drivers, described as
self-employed ‘partners’ by Uber. The action argues that as Uber pays the
drivers and effectively controls charging rates and the route taken, they owe
the same responsibility as any employer does to its workers, including the
minimum wage, paid leave and making sure drivers take rest breaks. If
successful, Uber could be forced to compensate drivers for past payments, as
well as future.
Anything
Uber-related attracts attention, following its meteoric worldwide growth, but
the problem highlighted is one that UK companies need to consider as they seek
efficiencies in staffing, warns Miller Hendry.
Many
organisations do not recognise that even where someone is not an employee, they
may still be categorised as a ‘worker’ and be entitled to certain rights such
as the minimum wage and paid holiday. Employees are also ‘workers’, but with
extra employment rights and responsibilities. To tackle the problem, the
Government has launched an online tool to help employers and individuals to
identify their status.
The
definition of a worker in the Working Time Regulations 1998 is someone who
works under a contract of employment, or any other express or implied contract,
to provide work or services personally for a reward and who cannot send someone
else to carry out the task. There are some exceptions on sub-contracting of
work, and also where services are provided by an individual through a limited
company. However, it means that many casual, freelance or self-employed workers
may be treated as workers.
In
one case that reached the Employment Appeal Tribunal, a self-employed joiner
working exclusively for a firm of building contractors was found to be a
worker, despite providing his own hand-tools and paying his own tax and
national insurance.
Similarly,
many think that calling someone an intern will confer a special status, but
it’s much more likely they too will be a ‘worker’ or an employee. So, what
counts when deciding whether an intern is due to be paid?
*
If someone is acting as a shadow, watching someone at work, and not undertaking
anything on their own that could be seen to be of benefit to the company, they
are not likely to be a worker
*
If they can come and go as they please, and are not required to do a certain
amount of work, they may not be classified as a worker. A shorter term
placement is also likely to support this.
*
If they are a student and undertaking work experience of less than a year as
part of a UK-based further or higher education course, they are exempt from the
national minimum wage, although the Government is encouraging all employers to
pay interns irrespectively.
*
Voluntary workers may not be entitled to the minimum wage if they’re working
for a charity, voluntary organisation, associated fund-raising body or a
statutory body and they receive only limited benefits such as travel or lunch
expenses
Said
employment law expert Alan Matthew of Miller Hendry, with offices in Dundee,
Perth and Crieff: “When employers come up with different ways of contracting
for services and staffing to make efficiencies, it’s not necessarily a bad
thing for workers, who may themselves be seeking greater flexibility, for
example. However, both sides need to be clear. What’s important is recognising
that the way that the company and an individual interact will determine the
outcome on employment status, rather than simply the title that’s given to
someone.
“It’s
a complex area, and even something that seems clear-cut may not prove to be so
– such as a case where someone working through an agency has been able to
satisfy the conditions for employed status. If it reaches an employment
tribunal, they will be looking at the intentions of both sides, as well as
whether a person provides their own equipment, has some form of financial risk
or is integrated into the business.”
For
further advice or information on employment law or other legal issues, visit www.millerhendry.co.uk