Naughty or nice?
By
Sean Jones QC considers whether employment lawyers' Christmas wishes will come true, with more gig economy cases and new gender pay gap regulations to look forward to in 2017
Did Santa bring you what you wanted this year? In December 2016 the Business, Energy and Industrial Strategy Committee invited employment lawyers (and anyone else who had been good) to submit ideas on how they would like to see employment law reformed.
The Law Society response was measured and sensible, focusing on traditionally vexed areas such as the problems with access to justice and enforcement of employment rights created by the introduction of tribunal fees.
The legality of the tribunal fees regime is shortly to be considered by the Supreme Court (having been bumped down the list by the trifling matter of something called ‘Brexit’ and ‘article 50’). On my Christmas list was sight of the government’s report on the impact of fees, which was originally submitted in October 2015 and has since been locked in a drawer somewhere dark and very unchristmassy.
Gig economy
The Law Society submission also touched on the question of the uncertainty of employment status and the rise of the gig economy. Uber’s disruptive business model got thoroughly disrupted by London Central Employment Tribunal before the Christmas break, when a number of the individual micro-businesses (or drivers, as they might be more commonly termed) who used the Uber app to find fares were found to be workers, and thus entitled to holiday pay and the national minimum wage, in Aslam, Farrer and others v Uber (2202550/2015).
In Dewhurst v CitySprint UK Ltd (2202512/2016), the same tribunal decided that bicycle couriers working for CitySprint were also workers, despite the grandly titled ‘Confirmation of Tender to Supply Courier Services to Citysprint Ltd’ in which the terms on which they worked were set out. As in the Uber case, a contractually stipulated lack of mutual obligation to provide and perform work was pushed past by reliance on what happened in practice.
Uber seems likely to be off to the Employment Appeal Tribunal, while next up at first instance is Deliveroo. Gig economists may not have found a BEIS civil servant stuck in the chimney clutching some longed-for new law, but there does seem to be a possibility that the legislators may even now be wrapping up something special to stop new working practices being pressed into the mould of existing employment and worker statuses.
Right to disconnect
But this is all familiar stuff – the employment law equivalent of finding some new socks under the tree. Perhaps we could have been greedier. The French have got themselves a new racing bike in the form of a law allowing employees to disconnect from electronic communications outside working hours (‘droit à la déconnexion’).
The law applies to businesses with more than 50 employees. It envisages that the employer will try to reach an agreement with social partners on rules regarding the hours in which employees are relieved of having to read and respond to emails. If no agreement is possible, the employer must adopt a charter identifying when employees should ‘disconnect’.
The measure was the one relatively popular element of a broader package of ‘modernising reforms’ to French employment rights which resulted in some lively street debate between protesters and authorities. A depressing but insightful article by management consultant Michael Mankins in the Harvard Business Review scoffs at the new right and suggests that managers sending fewer emails and the banning of ‘reply all’ might be a more effective aid to work-life balance (HBR, 10 January 2017).
Gender pay gap
No amount of good behaviour or intense wishing on the part of employment lawyers is going to make the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 go away. They come into force, in all their statistical glory, on 6 April 2017 and apply to those with 250 or more employees.
By 6 April 2018, such employers should have published their first report. Oversimplifying, the reports should cover the gap between the average pay of men and women within the employing business, as well as other information relating to receipt of bonuses, gap in average bonus size, and gender participation in each quartile of the employer’s pay distribution.
Finally, the tribunal will, from early this year, publish all its decisions online. That is no doubt someone’s dearest Yuletide wish, but given the associated dangers of blacklisting and victimisation, I’ll stick with my new socks.
Sean Jones QC is a barrister at 11KBW