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Well I Got That One Wrong!

November 22, 2016/in news /by Benjamin Thornber

Well, I got that one wrong!

Uber employment status

For those of you who read my previous blog about Uber Employment Status (Uber the Employment Rainbow), you will recall I thought that the Uber taxi drivers would be considered self-employed and not workers. This was on the basis that fundamentally there is not much difference between the Uber drivers and other black-cab drivers – other than the cost of the fare and the amount of money they make.

In its wisdom, though, the employment tribunal decided that because Uber had significant control over their drivers’ actions, the idea that the drivers were running a business, having contracts with each passenger, was a “pure fiction”.

There is no need to go into all the minutiae of the judgment. Uber immediately indicated that it would appeal, and given the GMB backing to the drivers’ case you can bet this will probably go all the way to the Supreme Court.

Meanwhile, Deliveroo drivers have launched a similar case, and Amazon is getting it in the neck with their driver contracts. This is a big deal.

The “deal” is about the way we regulate work in the age of internet platforms and the relentless rise of self-employment generally (be it imposed or voluntary). What it comes down to is the tension between everyone’s desire for low-cost consumer convenience on the one hand and workers’ rights and pay on the other.

This is not a new dilemma, but the rise of the “gig” economy (platform-based self-employment) could potentially affect many more workers previously unaffected by, say, outsourcing or agency working.

Although some undoubtedly do very well out of the gig economy (Airbnb lets springs to mind), there is no doubt that a certain portion of gig workers earn little more than a pittance with no protection; you try living on less than minimum wage with no holiday pay, sick pay or the right to a pension.

Is this really what we are prepared to accept for the sake of next day delivery? Do we care as little for UK workers at the sharp end of servicing our convenience, as we seem to care for Asian factory workers producing cheap clothes?

What I did get right is that ultimately these matters are not for judges to decide, but for our esteemed elected politicians. Right on cue, I’m pleased to say that they (the politicians) were listening: the Commons Select Committee on Business, Energy and Industrial Strategy has just launched an inquiry into the rapidly changing nature of work, the status and rights of agency workers, the self-employed, and those working in the ‘gig economy’.

Among the issues it has set itself to review, the Inquiry will consider the level of Government support for the self-employed and for employees, eg over statutory sick pay, holiday pay, employee pensions, and maternity pay.

The trick will be to devise a system that does not compromise the advantages of the internet-based economy, yet ensures that people delivering the services are not exploited – whether they be categorised as self-employed or not. Not easy, admittedly, but is this not exactly the kind of issue we pay our politicians to deal with?

We will see whether anything significant comes from Parliament. In the meantime, there is plenty of scope for the judges to disagree as the cases wind their way through the courts. This story has only just begun. If you need guidance on the status of your staff / employees / contractors …… contact us for advice

(c) Thornber HR Law

Uber the Employment Rainbow

October 24, 2016/in news /by Benjamin Thornber

Uber the Employment Rainbow?

Employment lawyers are (rightly) accused of hyping up the ramifications of employment tribunal decisions and the impact they may have on business or workers. There’s a decision pending though which may actually live up to its billing.

Over the summer, Uber drivers brought test cases arguing that they are entitled to basic workers’ rights such as holiday pay and the national minimum wage. The judgment is due soon.

The decision will affect the tens or thousands of Uber drivers in the UK (there are 42,000 in London alone). But it will also impact on all the other delivery drivers and couriers who are contracted on a self-employed basis, the numbers of whom have increased exponentially to meet our insatiable demand for goods ordered online. And it will have wider impact on other apparently self-employed workers, for example those who are engaged to carry out activities via online platforms.

The new jargon term for this is the “gig economy”: think Uber, Airbnb, Etsy (online marketplace), Takrabbit (home chores), fivver (anything online for £5!). Many see the trend as generating risk-free entrepreneurship with the in-built flexibility to fit around other work or family life.

The downside though is the lack of a steady pay cheque and fixed hours, let alone other company benefits such as pensions. At worst, for their efforts gig workers can end up earning significantly less than the minimum wage with no job security.

You can read an interesting article about the two sides of the gig economy here.

The trend fits in with the wider growth of self-employment, which relies principally on a good broadband connection. Many embrace the opportunity to develop good businesses, but many others find to their cost that all they have done is create not a business but a lower paid job with longer hours and more insecurity.

Back to our Uber drivers. Are they genuinely self-employed, or does Uber have enough control over them that they are entitled to workers’ rights such as holiday pay and national minimum wage? My guess is that the tribunal judge will decide against them, on the basis that common sense dictates that Uber drivers are not in essence much different to other mini-cab or black cab drivers, none of whom have “an employer”.

But you can bet that whatever the decision, it will get appealed all the way through the appeal courts (the GMB is backing the Uber drivers).

The point however is that our employment laws, despite what the judges may say, are not equipped to deal with this kind of self-employment. The basic concept of self-employed is that you take on more risk for potentially better pay (and you can pay yourself a decent holiday if you wish). But if increasing numbers of the new self-employed end up poorer, the trade-off breaks down: what is the logic of the rest of society having rights to a minimum wage and holiday pay?

To be cynical about this, it is all very well outsourcing goods and services to other countries where they pay a pittance and have lax health and safety laws (who cares so long as we get cheap goods?), but we may well end up creating similar issues back home.

Sounds a bit dramatic I agree, but the danger is that if the growth of self-employment continues they will increasingly replace paid employment and there will be fewer paid jobs to go round. Increasingly, for many people self employment will be the only way to go, a good portion of which will be (very) poorly paid.

My view is that at some point there will be basic level of protection for the new self employed, but that this is role of Government not the Courts. But given current priorities I wouldn’t hold your breath that this will happen anytime soon.

(c) Thornber Employment Law Ltd

The Next Generation – What Will Work Look Like?

September 30, 2016/in news /by Benjamin Thornber

The Next Generation – What Will Work Look Like?

I am delighted to say that I have recently become a father for the first time, and feel all the joy and love which every parent feels when they bring new life to the world. Naturally my baby girl Sophia is perfect in every way, although with parenthood comes a whole new level of anxiety and worry which my non-parent life just could not appreciate.

Whilst pondering about the miracle of life and how lucky I am, come also thoughts about what kind of world Sophia will grow into. Since WWII, we have in western Europe lived through an unprecedented era of economic growth, rising living standards and work opportunities for most, better education, health and longer life. It is fair to say that for most us in the UK and western Europe (with notable exceptions), the big picture is that the last 60 years has been one of the best times to live.

Is this era breaking down and coming to an end? One could point to many anxieties: the effects of global warming, China’s economic rise, indiscriminate terrorism by fundamentalists, lower economic growth, and the rise of nationalism within the countries of the EU and the UK. The list goes on.

These recent global trends have affected the world of work. Over the last few years there has been a significant increase in insecure and poorly paid work (through agency, part-time and zero-hour working), a growing divide between the richest and the rest, increasing cost of education, decreasing work benefits such as secure pensions except for the few. Frankly, I can’t see this trend reversing and, sadly, they affect the existing poor and minorities more than others.

But do not just think that it is the lower paid and less well educated who will be most affected. In future the tide of automation will hit professional services, where computers and machines will in many areas be able to give sensible advice at hugely reduced cost. Huge swathes of professions (including lawyers!) will be affected.

Should we be alarmed? Well, possibly. But our experience tells us that, although automation destroys large swathes of work, it also creates jobs and opportunities elsewhere – we just don’t know where or what they will be. The trick is to have a wide range of skills, experience and education so as to be in a position to take advantage of them when they do arise. Easier said than done, of course. And the downside is that I suspect it will only serve to widen the gap between the haves and have-nots.

A graphic example of the mixed picture about the effect of technology is through the rise of micro-businesses. Only requiring a good broadband connection, increasing numbers have started their own business from home or a shared office. Sounds great in theory, and many embrace the opportunity to develop good businesses. But many others find to their cost that all they have done is create not a business but a lower paid job with longer hours and more insecurity. As this trend continues, I suspect there will be moves to give the self-employed at least some level of protection, coupled with less protection given to employed workers, ie some equalisation of the current situation.

What else will change? My instinct is that we will finally make serious inroads into the gender pay gap by paying more than lip service to flexible career arrangements, subsidised child care and paid paternity pay (not shared with the mother). But I can’t see a further expansion in discrimination rights (other than, possibly, protection against `fatism’), and the role of collective organised labour will continue its historical decline.

Ultimately, though, for my Sophia and the rest of the next generation there is no set formula for success and happiness at work. Just a few simple principles: educate yourself, communicate well, have a good work ethic, and treat others at work and in life how you want to be treated. Now that’s not so scary is it?

(c) Ben Thornber, Thornber Employment Law Ltd

Women continue to earn less than men – what should be done?

April 1, 2016/in news /by Benjamin Thornber

Women continue to earn less than men – what should be done?

In the public sector, a lot has been done to rectify unequal pay over the last 10 years. It has been compulsory to compare workers who do not do the same job but which are deemed to amount to work of equal value. For example, cleaners who are predominantly women have been paid less than bin workers who are almost exclusively men.

This has led to hundreds of thousands of claims for unequal back pay, and hence enormous bills to Councils and the NHS which ultimately tax payers have had to pay. From here on, however, there should be pay reasonable pay equality in the public sector.

That said, this measure alone will not necessarily mean more women will rise to the senior positions in the public sector. Nor is it inevitable that women in the top jobs will be paid as much as the top men in different, but comparable, public sector organisations.

And in the private sector, it is a different story entirely with unequal pay still rife. The government’s proposal to require larger companies to report on their own gender pay gap is therefore a step in the right direction, but is unlikely to tackle the problem on its own.

Strangely enough, there is little consensus on what measures should be taken. At senior and board level, some argue for quotas whilst others are rigidly opposed. There are those who maintain that there are too many structural obstacles in the way, such as: the prevalence of zero hour contracts; the lack of universal, easily accessible and affordable child care; failure to embrace flexible working for women returning from maternity leave.

Interestingly, there is some research which indicates that diversity training programmes lead to a drop in the likelihood that under-represented groups becoming managers. Is this because, from a gender standpoint, this type of training leads to more self-evaluation and women are more self-critical than men? Food for thought for the HR industry and employment lawyers.

Perhaps it comes down to our unconscious biases about the roles which men and women should play in society: for example, many of us still associate women with families and men with careers. In the same way, it is said that women do not generally fight for more pay as they have a greater inclination to want to be liked and not be difficult. Common sense dictates there must be something in these stereotypes.

It would be facile though to say that any one measure would resolve the situation. The answer surely lies in practical changes which companies can implement, eg on recruitment and selection practices, pay negotiations, performance evaluation and teamwork. The trick is knowing which of these have a positive impact and those which, despite best intentions, may make matters worse.

The big downside to these kind of measures, however, is that they are likely to be beyond the reach and cost of most SMEs. So what is the one measure which all companies can implement, no matter how small? This is simply to be open and transparent about staff pay so that everyone can measure themselves: if you do not know what other people are paid, how can you complain?

But this works both ways: deep down most people – men and women – do not want others to know how much they are paid. This suggests that the solution lies in a fundamental shift in thinking by everyone, not just companies. Otherwise, I suspect unequal pay will be with us for many years to come.

(c) Ben Thornber, Thornber Employment Law Ltd

Forth Road Closure Should Prompt a Rethink

January 8, 2016/in news /by Benjamin Thornber

Forth Road Closure Should Prompt a Rethink

As a resident of the Wee County, working at Pitreavie in Dunfermline and travelling frequently to clients in Edinburgh, the re-opening of the Forth Road Bridge is a welcome piece of news. Boy, have we missed that vital link.

There is no doubt the closure has had a massive impact on businesses around Edinburgh and throughout central Scotland. Those of us who work in Fife with connections south of the Forth have all had to re-arrange our lives to deal with long commuter delays.

For many Scottish businesses, the implications have been acute with less time spent by staff at work, meetings cancelled, hauliers’ routes increased, and crucial time lost for many Scottish companies in the vital lead-up to Christmas.

It has definitely had a detrimental impact on Scotland’s productivity – and that has to be a concern for the Scottish Government, because it is well-reported that Scotland is falling behind in the international productivity league tables.

While the post-mortem on why the bridge was closed is an issue for other commentary slots, it also raises a topical issues about the way we look at work in Scotland as 2016 arrives.

Technology remains key to allowing more flexible working, although serious concerns remain about the variable quality of Scotland’s mobile infrastructure and the speed (or lack of speed) of broadband in rural areas.

In any case, businesses have to be more flexible about giving staff extra time to get to work where appropriate, or about start and finishing times to the working day.

There are still too many workplaces ruled by the tyranny  of a 9-5 existence, when they have the opportunity to be more creative.

Managements need to give more thought and consideration to home working, or put in place arrangements with other businesses about using offices more local to where staff live, so they don’t have to commute. Surely, this is an environmental issue too?

Of course, this depends on the nature of job, and how easy and effective it is to monitor someone working from home – and not on the golf course or shopping.

Here, as an employment lawyer, it raises the question of why businesses use expensive premises in the centre of cities which are under-utilised much of the time. Satellite working, again using the latest technology, has to be embraced in 2016, with more digital hubs for transient workers.

We also need to consider how we reduce the number of journeys undertaken by large HGVs. Why, for example, are there now so many vans delivering single items of clothing, technology, food, etc, from online delivery firms?

We need to start thinking about out how many of these journeys are absolutely necessary and what we can do to have a positive impact on our society and environment.

Perhaps the bridge closure will act in a small way as a catalyst for businesses to affect more change in the workplace. Let’s only make the journeys for work and for leisure that are truly needed.

(c) Ben Thornber

(This article appeared in The Scotsman on 28 December 2015: http://www.scotsman.com/news/comment-forth-road-bridge-closure-should-prompt-a-rethink-1-3985588)

Well, I got that one wrong!

Uber employment status

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