Rise of Atypical Work Flashcards
Zero Hours Contract
By definition a ZHC is a form of employment contract whereby the employer is not under a duty to offer fixed hours of work each week, and the employee is not under an obligation to accept any work.
Problematic since by definition this means there can be no mutuality of obligations = legal test for contract of employment.
6% of all employment contracts estimated to be ZHC.
Agency Work
Agencies are intermediaries between the worker and employer. Difficulty is establishing who the employment relationship is between - agency and worker, or end-user and worker? No direct legal relationship between the end-user and the worker.
Further difficult due to the fact that many agency workers are contracted as self-employed, so they do not even have direct contractual relations with the agency.
30% increase in agency workers since 2011 - predicted that by 2020 there will be 1m agency workers in the UK.
Dacas v Brook Street Bureau
D was employed as a cleaner through an agency. Council supplied her with equipment, cleaning materials and prescribed her work. D was allegedly rude to customer so council told agency they no longer wanted her. Agency then told D they could not find her any work.
CA held that D was not an employee of the agency - no mutuality of obligations and control exercised by the agency. However, court was willing to read across triangular relationship into an implied contract between the council and D. However, on the facts of the case CA could not find an employment contract between D and council since this was not appealed.
James v Redcats
EAT held that there can be a contract of employment for particular contractual stints even though there is no umbrella contract due to a lack of mutuality of obligations for the whole period.
s 212(1) ERA 1996
Any week during the whole or part of the employee’s relations with the employer which are governed by a contract of employment count towards the employee’s period of employment.
s 212(3) ERA 1996
Any week in which the employee is incapable of work due to injury etc. still counts towards the employment period
s 34 NMWA 1998
Minimum wage applies to workers in agency situations. Agency worker shall be treated as a worker even in the absence of a contract to perform services for the agent or individual.
The Act applies as if there were a worker contract between the worker and the agency/end-user - whichever of those two is responsible for paying the worker.
James v Greenwich LBC
Elias J said that the common law can only tinker on the margins of the current framework of agency work. Argued that careful analysis of the problems and solutions of legislative protections here was “urgently needed”.
Shows courts have acknowledged that agency work is a problem for them to regulate, but they have limited scope in doing so.
Agency Workers Regulations 2010
General aim = after 12 weeks work for a particular end-user, the agency worker receives the same pay and basic conditions as an employee of the end-user.
Reg. 5 - equal treatment between agency worker and directly-employed employee in regards to basic working conditions. Per Reg 6. = pay and working time conditions.
Reg. 7 - qualifying period of 12 weeks’ continuous employment.
Limitations of Agency Workers Regulations 2010
1) basic conditions are limited - only pay and working time.
2) 12 weeks of continuous employment requirement - end user can circumvent this relatively easily.
3) Regulations do not address the personal scope of pre-existing legislation. The employment status of agency workers is their biggest issue - e.g. statutory entitlements to unfair dismissal, and this does nothing to help them in that regard.
Aslam & Others v UBER - FACTS
Uber is a company which utilises an app as a platform to provide taxi journeys. Drivers are contracted as self-employed - idea being that UBER is merely a link/platform between the self-employed driver and customer. Drivers brought claim that they are workers, not self-employed and so are entitled to NMW and working time entitlements.
Aslam & Others v UBER - ET
ET held that UBER drivers should be classified as workers, not self-employed individuals. Rejected notion that UBER’s business is a mosaic of 30,000 small businesses as “faintly ridiculous” - in reality, ET found it was a taxi service. Language UBER uses (our drivers, generate jobs in the UK) demonstrates nature of business is not platform for self-employed drivers.
ET focused on traditional factors such as control - UBER exercises high degree of control over drivers:
- interviews and selects its own drivers
- stipulates which cars drivers can use
- sets the route the driver must take
- UBER retains info about customer and destination until the driver has picked them up
- drivers cannot accept or negotiate a higher free
- rating system used to weed out drivers
In terms of working time, UBER driver is working from the moment they switch the app on since it is vital to have a pool of drivers ready for UBER’s business.
Pulse Healthcare v Carewatch
EAT held that ZHC of care workers were contracts of employment because the contracts did not reflect the true relationship of the parties. Clear mutuality of obligation - so for ZHC tribunal may be willing to declare written terms as a sham and find contract of employment.
Zero Hours Contract Bill 2015
Clause 6 would impose a duty on employers who have continuously employed ZHC worker for a continuous period of 12 weeks to offer the employee fixed and regular working hours.
Clause 10 - any week in which work is not provided by employer still counts towards period of continuous employment.
Clause 3 - ZHC workers to be treated on parity with regular employees/workers.
Freedland and Prassl
‘Employees Workers and the Sharing Economy’ - argue that Pimlico Plumbers, along with Uber and Citysprint ET judgments, confirm and reinforce that there is now a tripartite taxonomy of employment relationship under English law. s 230(1)(b) creates an intermediate category between employee and genuinely self-employed/independent contractor - entitled to some significant statutory protections (e.g. NMWA and WTR) but not the same level as employee (don’t benefit from UD etc.).
Beneficial development that the courts have made in recognising the complex challenges of the gig/on-demand economy which courts have found very difficult to regulate under the traditional ‘binary divide’. Affords them a greater degree of protection, although submit that Prassl and Risak’s focus on employer function test would be a better means of regulation for triangular and multilateral employment relations.
