Uber and Out

“Uber and Out”

“Gig Economy” – Self employed or worker?

With minds focussed on getting through home-schooling, vaccines and the long-hoped-for holiday, it would have been easy to miss the BIG NEWS in the employment law world.

Uber drivers have – definitively – been deemed workers and not self-employed.

After several years going through the various appeal courts, the Supreme Court has, at last, come to this view.

What did the Court decide?

The Supreme Court did not accept that the contract was made between driver and passenger (in contrast to mini-cab or black-cab rides), or that it was acting merely as a platform-based booking agent for the driver.

Rather, the Court found the contract is between the passenger and Uber, which then engages drivers to carry out the bookings.  The reasoning was that Uber exerts significant control over a number of aspects such as: prices for rides; whether the driver can accept or decline rides once they have logged on; the five-star ratings system; and preventing the driver from getting further rides with the passenger.

The consequence is that the Uber drivers are not deemed to be genuinely self-employed operating their own separate business.  Hence their `worker’ status.

What’s more, the Court found that their `working time’ is not limited to when they are driving passengers to their destinations, but includes any period when the driver is logged into the Uber app.

What does being a `worker’ mean?

Workers have a strange intermediate status.  They are not full employees, so are not entitled to full employment rights such as redundancy pay or unfair dismissal protection.

But they are entitled to the minimum wage and holiday pay.  They also receive employer pension contributions, statutory sick pay and statutory maternity pay, assuming they meet the qualifying conditions. Nice.

For companies, having workers can cost quite a lot more in holiday pay, national insurance and pension contributions. There is also a fair bit more paperwork such as PAYE.

What’s the significance?

More and more people work in the so-called “Gig” economy, of which Uber drivers are but one example.  Some of these people are genuinely self-employed, but for many others, it’s less clear. This time, and to Uber’s cost, the courts found one way.

What about delivery drivers and couriers?

In many ways, the Supreme Court’s decision is not surprising.  In the last couple of years, there have a string of employment cases that have found delivery drivers and couriers to be workers and not self-employed: Hermes, Addison Lee, Hermes, Excel, City Sprint.

The basic theme running through the cases is that the companies exercise a significant degree of control over the delivery drivers and couriers, such that they can’t be deemed genuinely self-employed.

However, it is not quite the end of the story.  Last year, the High Court found that Deliveroo drivers were indeed self-employed because their contract gave them the right (which was used in practice) to substitute someone else to do the delivery on any one occasion.

So we may yet see some of these companies starting to use a substitution clause to get around worker rights.  Or, who knows, the Deliveroo case may yet be overturned on appeal.


A lot of the problem here is that employment law is not geared towards modern gig economy practices: politicians – where are you?

But the wider question for all of us is the tension created by the modern 24-hour service culture at the touch of a smartphone on the one hand; and, on the other, how much we pay and treat the people who service that culture.

(c) Ben Thornber, Thornber HR Law

Did Someone Say New Employment Law?

Did Someone Say New Employment Law?

Deafened by the Brexit gale, you could be forgiven for failing to notice that there have been some announcements dealing with employment law matters.

Just before Christmas 2018, the Government published its ‘Good Work Plan’, based on the previous Taylor Good Work Report, and then tabled three sets of Regulations.

The key measures are that from 6 April 2020:

  • employees will have the right to a written statement of terms from the first day of employment, rather than (as currently) within the first two months
  • extending the right to a written statement of terms to workers as well as employees
  • increasing the reference period for calculating a week’s pay for holiday pay purposes from 12 weeks to 52 weeks – relevant where the pay is variable such as regular overtime
  • abolishing the Swedish Derogation, which gives employers the ability to pay agency workers less than their own workers in certain circumstance

What happens from April 6th with the Good Work Plan?

From 6 April 2019, the (rarely imposed) penalty for employer’s aggravating conduct will be increased from £5,000 to £20,000.

In addition, earlier this month the Government published a consultation paper on extending the right of employees on maternity leave who are selected for redundancy.  The current rule is that they must be given priority over other redundant employees for suitable alternative employment.

The Government is considering extending this right to:

  • women who have returned from maternity leave in the previous six months, not just those who are currently on maternity leave
  • women who have told their employer they are pregnant
  • employees on adoption leave, shared parental leave and longer periods of parental leave

There are however still a number of other proposals from the Taylor Good Work Report which have not resulted in Government proposals or consultation.  This includes the thorny issue of ensuring the employment status tests are the same for employment and tax purposes, and to avoid employers misclassifying employees/workers as self-employed.

A good start

Still, this is a start and it does show that the normal business of government is working.

For most businesses, the measure which will have most impact will be the requirement, from April 2020, to issue a statement of terms or a contract from day one to both employees and workers.  One practical way round this may be to ensure that your Offer Letters cover all the required elements and that they are sent to all new starts.  This is something we can help with so don’t hesitate to get in touch.

(c) Ben Thornber, Thornber HR Law


Life Outside of Brexit?

Life Outside of Brexit?

Reintroduction of employment tribunal fees

Brexit, Brexit, Brexit… that’s all one hears these days.  What with negotiations on the transition deal with the EU, and now the precarious vote in Parliament, virtually all other government business has seized up.  The world of employment law is no exception, with precious little of significance coming up.  But that said…….

………..It has been reported that the Ministry of Justice (MoJ) is planning on the reintroduction of fees for bringing employment tribunal claims.  The previous scheme was deemed unconstitutional by the Supreme Court in 2017, and so far the MoJ has made refunds totalling £15.8m.

Not surprisingly, since fees were abolished there has been a marked increase in the number of tribunal claims brought.

Undeterred, the MoJ says it will reintroduce a scheme that helps fund the court system while being ‘proportionate and progressive’, although it has no immediate plans of doing so.

Presumably, we’ll hear more about this after the UK has withdrawn from the UK in March 2019 (or not…)

Meantime, there have been some recent interesting cases recently.

Long-Term Disability Benefits – Implied Term not to Terminate

The EAT has held that there is an implied term not to dismiss an employee for incapability if it would thwart contractual entitlement to long-term disability benefits, even if the plan states that the benefits would terminate if the employee was no longer employed: Awan v ICTS

Vicarious Liability – Beware!

Mr Skelton was a senior IT internal auditor with Morrisons.  He was convicted of fraud and other criminal offences for sharing employees’ personal data online and with three national newspapers out of a grudge against Morrisons.

The Court of Appeal held that Morrisons was vicariously liable, ruling that there was a sufficiently close connection between Mr Skelton’s employment and his wrongful conduct – even if his motive was to cause financial or reputational damage to Morrisons.

The lesson here is to check your insurance covers large data breaches by employees, together with as many actions by employees as possible even if not part of their job.  WM Morrison Supermarkets Plc v Various Claimants

Holiday Pay – More Rights

There has been a long line of case-law from the EU Court (CJEU), which has strongly upheld workers’ rights to holiday.  In Max-Planck-Gesellschaft v Shimizu, the CJEU ruled that even if the worker did not take his entitlement to holiday and there was no reason preventing him from doing so (eg illness), the employer would still have to show that it ‘diligently’ and in good time brought it to the worker’s attention that the holiday would be lost if not taken by the end of the year.

Here in the UK, this applies to the 20 statutory days’ holiday, so if you want to be safe it would be a good idea to send out this kind of notice at some point during the year.

Which brings me back to Brexit.  The one area of EU-led employment law which the UK may start to change after Brexit is under the Working Time Regulations.  But there’s still a long way to go before that happens. In the meantime if you have any queries do get in touch.  We are always here to advise and help.

(c) Ben Thornber, Thornber HR Law

Who Do You Want to Train With?

Who Do You Want to Train With?

Training repayment and tie-in

Training opportunities are great – but watch draconian repayment clauses and long tie-in periods.

No matter at what stage in your career, the training offered by your employer matters. It can keep you up to date on new developments and techniques, or it can set you up on a new career path: both employers and employees benefit.

Many employers provide training for free and do not expect any tie-in period or payback from their employees. That said, in principle most people would accept some form of repayment or tie-in arrangement as reasonable. After all, it helps deter an employee leaving immediately after the training and using the newly acquired skills for the benefit of another employer (together with, often, a pay rise).

However, some companies take the pay-back mechanism to extremes.

Two years or £20K

Capita and FDM Group require their trainees to work for them for two or more years, or else be liable for fees of £20,000 or more. What’s more, Capita require job hunters to carry out three or four months unpaid training before being considered for salaried work.

This practice has been described by some as “Victorian-style indentured labour practices”, and resistance to it has been gathering apace. In Capita’s case, you can imagine the bad PR given its reliance on public sector contracts.

Sure enough, in response to the campaign Capita recently announced that it would no longer be seeking to enforce any existing training fee repayment clauses. FDM has yet to respond. It is not inconceivable that a legal challenge could be mounted for recovery of the repaid fees or even under the Modern Slavery Act.

Is this the tip of the iceberg, with companies across the country operating this kind of extreme repayment clause? I suspect not, but it does highlight the need to think carefully about repayment mechanisms.

Loyalty vs Fear

There is a balance between creating loyalty from employees by encouraging training and development, versus generating resentment and fear of leaving. Certainly, it is worth thinking about tapered repayments which reduce over time, or not enforcing all the training costs if they are high relative to the individual’s salary.

One disturbing thought, however, is that for many years (ie decades) the UK has had a poor record in training and investment in its people compared with other countries. The naming and shaming of the likes of Capita and FDM may not change things overnight, but if it changes some attitudes towards the value of training that can only be positive.  Don’t get exposed like Capita, contact us for advice and assistance

(c) Ben Thornber, Thornber HR Law

Online or Face-to-Face Training?

Online or face-to-face training?

When you want your employees to learn about something new, you usually have two options available to you. You can either enrol them on an online course or use an external training provider for face to face training.

What are the advantages and disadvantages of these?

Online advantages:

• Employees can work at their own pace.
• Work can be done in their own time, often outside office hours.
• It can be used by many employees in different locations.
• It negates the expense of hiring somebody to come on-site, or the inconvenience of having employees go offsite to undertake training.

Online disadvantages:

• Lack of personal face to face support.
• The possibility of procrastination when undertaking training outside of work.
• Problems accessing technology.
• Lack of peer support and communication with others when learning together.

Face to face advantages:

• Getting together with colleagues to share information and knowledge.
• Help and support on hand during the course.
• Good for team building and morale.

Face to face disadvantages:

• It might feel for some like being ‘back at school’ and they may fear speaking up.
• People have different learning styles and paces, and some may work and understand more quickly than others.
• Face to face training is likely to be more expensive.


It is often a good bet to have a combination of the different types of training available to employees, depending on the type of business you have and the number of employees. If you wish to discuss your training needs further, please get in touch.

(c) Ben Thornber, Thornber HR Law