Gigging it the right way – staying casual and smart in the modern economy
Businesses which rely upon flexible workforces should be alive to developing trends towards improving employment protections for casual staff and other atypical workers, warns Patrick Glencross, senior associate at law firm Cripps Pemberton Greenish.
A series of test cases has challenged the working models adopted by businesses in the “gig economy” and their perceived exploitation of casualised labour. Consistent rulings in these cases have been that the “self-employed” individuals in these businesses have the status of ‘workers’ and so enjoy basic rights to minimum wage, rest-breaks and paid holiday.
Uber’s appeal against the ruling that its drivers are workers will be heard this autumn, the outcome may have wide ramifications.
Trade unions are increasingly active in this sector. An application for union recognition has been brought against Deliveroo, which would open up collective bargaining rights over pay and conditions. This will determine whether Deliveroo riders are ‘workers’ under the relevant legislation, including the extent to which in their work they operate under Deliveroo’s control.
The Taylor Review’s recent report included significant recommendations relevant to the foodservice and hospitality sectors, beyond the headline proposals about gig economy workers. These would redefine worker status by removing the requirement for personal service, allowing substitution powers for the worker, and placing greater emphasis on the aspect of control beyond supervision of day-to-day activities. All workers would be treated as employed for tax and National Insurance purposes.
All workers and employees would be entitled to written statements of terms on day one, including a description of their statutory rights, with clearer compensation rights for non-compliance. Statutory sick pay rights would be extended to all workers and employees as a “day one” right, with the current earnings threshold removed however the right to sick pay accrued, like paid holiday leave, with length of service.
The report suggests staff on zero-hours or short-hours contracts should be paid a higher rate of national minimum wage for hours not guaranteed by the employer. This echoes legislative measures across the USA around scheduling; for example New York requires fast-food restaurants to schedule work shifts at least two weeks in advance, otherwise pay staff extra for short notice changes.
Zero-hours workers would also have the right to request guaranteed hours after 12 months, with average weekly hours worked in the previous year as the starting assumption for any new contract. It is unclear whether the employer would have a legal duty to consider the request, or if the individual would have any remedy if it is rejected. This proposal reflects a growing pattern among companies to move staff across to guaranteed hours contracts. The report invites the consideration of other methods to encourage employers to guarantee more hours to staff, such as voluntary collective agreements.
An important proposal concerning casual staff is to relax the continuity of service rules so individuals can accrue continuity (and ultimately unfair dismissal rights) by working at least once a month, rather than once a week.
It is unclear how many of these proposals will be adopted as legislative changes, nevertheless businesses should prepare for the overall movement towards enhancing employment protections for casual workers and establishing flexibility as mutually beneficial for both employer and worker.
First published in B&I magazine on 1 August 2017.