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Employment Newsletter - Issue 8

9th March 2021

Employment Newsletter - Issue 8

Focus On?

Supreme Court confirms that Uber drivers are ‘workers’ and not ‘self-employed’

In this edition, we will be covering:

  1. Supreme Court confirms that Uber drivers are ‘workers’ and not ‘self-employed’
  2. Employers have a duty to support domestic abuse victims
  3. Lateral flow testing in the workplace
  4. Spring 2021 roadmap out of lockdown

Legal Update #1 – Supreme Court confirms that Uber drivers are ‘workers’ and not ‘self-employed’

The Supreme Court has unanimously dismissed Uber’s appeal and held that Uber drivers are workers and not self-employed sub-contractors, entitling them to national minimum wage, statutory minimum holiday and other rights. Worker status entitles individuals to an array of employment rights, but they are not entitled to the full list of rights that employees are entitled to, such as unfair dismissal rights and the right to a statutory redundancy payment.

James Farrar and Yaseen Aslan made a claim against Uber in 2016, arguing that they were workers of the Company. Uber argued that they were self-employed and so the Company was not obliged to pay them national minimum wage or statutory minimum holiday. The Employment Tribunal, and later the Employment Appeal Tribunal, found that Uber drivers are workers. The Court of Appeal upheld this ruling in 2018, and Uber subsequently made its final appeal to the Supreme Court.

The Supreme Court found that Uber drivers are workers from the minute they log onto the app until they log off the app at the end of the day, and not just when they are driving passengers. The drivers were required to sign a written agreement stating that when they accept a ride request, they are entering “a legal and direct business relationship” with the customer to which Uber is not a party to. However, the Supreme Court found that the correct inference was that Uber contracts with passengers and engages drivers to carry out bookings for it. This demonstrates to businesses that tribunals will look at the reality of the working relationship when determining employment status rather than focusing on what is set out in a contract.

The basis for the Supreme Court’s decision was the extent that Uber seeks to control its drivers. Lord Leggatt said "The greater the extent of such control, the stronger the case for classifying the individual as a 'worker' who is employed under a 'worker's contract'." He found that the transportation service performed by the drivers “is very tightly defined and controlled by Uber” based on several factors. In particular:

  1. Uber sets the fares that drivers must charge
  2. Drivers have no say in the contract terms under which they perform their services for Uber
  3. Uber monitors how many requests for rides the drivers accept and reject and penalises drivers if too many rides are rejected
  4. Uber controls the way drivers deliver the service
  5. Uber restricts the driver’s ability to form a relationship with any passenger capable of extending beyond an individual ride

Lord Leggatt also noted that these factors mean that the drivers have “little or no ability to improve their economic position through professional or entrepreneurial skill. In practice the only way in which they can increase their earnings is by working longer hours while constantly meeting Uber's measures of performance”. 

The employment tribunal will now determine the drivers' entitlements. 

This judgment serves as a reminder to employers that the reality of the working relationship will take precedence over any written agreement. Employers should assess the degree of control they exercise over their workforce and get in touch with the Employment Team if they have any concerns they would like to discuss.

Legal Update #2 – Employers have a duty to support domestic abuse victims

Emma Williams, a Solicitor in the Employment team at Higgs & Sons, urges employers to review their policies and increase their support for any victims of domestic abuse in their workforce.

The Covid-19 pandemic has presented endless challenges for employers, forcing them to introduce protocols and make decisions which would not have even registered on their radar 12 months ago.

 One of the many potential consequences is the increased need to recognise and support staff that are victims of domestic abuse.

As our Family team reported only last month, there has been a frightening increase in the reported number of domestic abuse cases since the first lockdown began in March (Domestic abuse article).

In January, the Government issued its ‘Workplace Support For Victims of Domestic Abuse’ report.

It called on employers to be extra vigilant to ensure they are identifying signs of domestic abuse and, subsequently, helping any individual affected get the support they need. 

Employers have a duty of care to take all reasonable steps to protect employees from wrongful acts of colleagues or third parties.

It is also likely any affected individuals will see the workplace as one of few areas in their life where they can be separated from their abuse and abuser and, potentially, be able to talk in confidence. 

The report states that line managers and HR representatives are concerned they are ill-equipped to deal with such incidents by offering the correct support and responding appropriately. 

That feeling will only be exacerbated by the vast majority of the country’s workforce currently working from home, providing a greater degree of separation between employer and employee.

The Government report urges workplaces to have a clear and visible policy detailing the support their employees can obtain from internal and external resources.

Line managers and HR should be given the relevant training to be able to spot the signs of abuse, while flexible working policies should also be reviewed to ensure any victim is able to attend vital police, social services or other such appointments without workplace concerns.

It is recommended that employers review their own policies on this as a matter of urgency and ensure procedures to try to break down the invisible wall of silence, which often prevent individuals reaching out for support, are in place.
 

Legal Update #3 – Government expands rapid workplace testing to businesses with more than 50 employees

Lateral flow testing can now be used by businesses with more than 50 employees who cannot work from home to help prevent the spread of coronavirus in the workplace.

What are lateral flow tests?

PHE has provided clarification on the differences between PCR tests and lateral flow device antigen tests (‘LFD’) and how the test results should be treated, as follows:

  • PCR tests are for individuals with COVID-19 symptoms. They are the most reliable and have to be processed in a laboratory, meaning that it can take 24 – 72 hours for the result. LFD tests are not as accurate as PCR tests in all circumstances but provide results in less than an hour. They are appropriate for use for regular testing of staff in care homes, the NHS and schools. LFD antigen tests can also be used as part of asymptomatic community testing programmes and are being rolled out to businesses with more than 50 employees who cannot work from home. 
  • Anyone who has had a positive PCR test result should not be tested again for 90 days from the test date unless they develop new symptoms of COVID-19. However, if they do have an LFD antigen test within 90 days that is positive (for example, as part of a workplace testing programme), they and their household must self-isolate again.
  • Individuals who receive a positive LFD antigen test result as part of a workplace asymptomatic testing programme or community testing programme, must self-isolate (along with their household) and arrange a PCR test. If the PCR test produces a positive result, they and their household must complete the self-isolation period and NHS Track & Trace will become involved. If the PCR test result is negative, and they have no COVID-19 symptoms, they and their household can stop self-isolating.

Government guidance

The Department for Health and Social Care (DHSC) published Guidance, Coronavirus (COVID-19) testing: guidance for employers and third-party healthcare providers in December 2020. Although the guidance was not published in relation to lateral flow tests, parts of it will still be applicable and useful to consider.  For employers who would like to implement a testing policy, the guidance advises them to: 

  • Consider the scope of any testing programme, including who will be tested, frequency of testing, arrangements for individuals who refuse to be tested and how test results will be used;
  • Think about how they intend to communicate with staff about the testing programme. Employers are "strongly advised" to consult with staff associations or unions before implementing any policy; and
  • Be aware of their data protection obligations in processing data.

Whether an employer can actually require employees to take a COVID-19 test involves consideration of similar issues discussed in our vaccination article. For instance, while an employer may have understandable health and safety reasons for testing employees, employees may regard it as an unnecessary invasion of their privacy. In addition, the testing process can be uncomfortable (involving a throat and nose swab) so employees may feel that it is unnecessarily invasive when they are not exhibiting symptoms and where there are other ways (such as social distancing) to ensure that any symptomless infection is not passed on to colleagues.

The employer may be in a stronger position where the workplace is one in which it is difficult to maintain social distancing, but consideration would need to be given to whether testing is a proportionate way to address that risk, taking into account the employer's health and safety risk assessment.

Acas guidance on workplace testing 

On 26 February 2020, Acas updated its guidance on testing: Working safely during coronavirus guidance. The guidance states that if an employer plans to test employees or workers for coronavirus, it should be agreed with staff, the workplace's recognised trade union, or other employee representatives.

The guidance also states that it is good practice to discuss:

  • how testing would work
  • how staff would get their test results
  • the process to follow if someone tests positive for coronavirus
  • pay for staff if they need to self-isolate but cannot work from home
  • how someone's absence would be counted if they need to take time off work, for example if it will count towards HR 'trigger' points
  • how the employer plans to use, store and delete testing data, in line with data protection law (UK GDPR)

Acas advises that any decision after these discussions should be put in writing (for instance in a workplace policy) and should be in line with the organisation’s existing disciplinary and grievance policies.

The guidance states that if someone does not agree to be tested, the employer should listen to their concerns. Acas recommends that employers are flexible and try to find ways to resolve issues. Please note that the updated guidance no longer states that employers may be able to discipline an employee who refuses to take a test unreasonably.

For any business seeking further advice on this, please contact a member of the Employment Team. 

 

Legal Update #4 – Spring 2021 roadmap out of lockdown

The government has published its Guidance: COVID-19 Response: Spring 2021 setting out the roadmap out of lockdown in England. It contains guidance which is likely to be of direct relevance to employers and workplaces.

Review of social distancing and other measures government is planning to conduct a review of the current social distancing measures in place ahead of step four (due on 21 June 2021 at the earliest). The government will use its findings to inform its decisions in relation to social distancing, face coverings, and working from home.

For now, the guidance states that “it is essential that everyone carries on with the good habits that reduce transmission: remembering ‘hands, face, space’ and letting fresh air in, getting a test on the first sign of symptoms and self-isolating if it is positive.”

The Government will update COVID-Secure guidance to provide further advice on how businesses can improve fresh air flow in indoor workplaces and introduce regular testing to reduce risk.

Homeworking

During the first three stages, the position remains that people should ‘work from home where they can’. At step four, commencing on 21 June 2021 at the earliest, the government is establishing four work programmes to consider different aspects of how the UK should handle COVID-19 from the summer onwards. The review mentioned above will also inform guidance on working from home and people should continue to work from home where they can until this review is complete.

Testing

As mentioned in legal update #3, the government is rolling out free test kits to workplaces for staff who cannot work at home until the end of June. Organisations, including those yet to open, will need to register their interest before 31 March 2021. The government will keep the situation under review as vaccine deployment continues and will investigate how testing could further be used to support economic recovery.

The Community Testing Programme is also being extended until at least the end of June. Launched in December 2020, as a partnership between national and local government, this rapid testing scheme was expanded in January for all local authorities in England to use and nearly all have now joined. This enables asymptomatic testing for local public services, small businesses, self-employed people and communities that have been disproportionately affected by the virus.

A new Community Collect model will be launching so that families, small businesses and the self-employed - who have found it harder to access regular testing - can take away rapid tests from some Government and local authority sites.
Shielding

The Spring 2021 roadmap states that the government anticipates that it will no longer be necessary for the clinically extremely vulnerable to continue shielding after 31 March 2021. However, the Government will confirm advice and next steps nearer the time to keep Clinically Extremely Vulnerable people safe. The Government’s expectation is that vaccination will offer vulnerable people increased protection from becoming seriously ill.

The Government is considering the long-term support that may be needed for the Clinically Extremely Vulnerable, particularly for those who cannot be vaccinated or do not receive a significant increase in immunity from the vaccine.

COVID status certification

COVID status certification involves using testing or vaccination data to confirm in different settings that people have a lower risk of transmitting COVID-19 to others. The Government will review whether COVID-status certification could play a role in reopening our economy, reducing restrictions on social contact and improving safety. This will include assessing to what extent certification would be effective in reducing risk, and the potential uses to enable access to settings or a relaxation of COVID-Secure mitigations. The Government will also consider the ethical, equalities, privacy, legal and operational aspects of this approach and what limits, if any, should be placed on organisations using certification.

 

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