The Supreme Court’s two-day hearing of the Uber BV and others v Aslam and others case took place week commencing 20 July 2020. It will be a landmark judgement in the field of employment law in relation to the definition of an employee, worker or self-employed contract. We can expect to hear the outcome in the next couple of months.
Why does it matter?
Employment status disputes are when an individual feels they are entitled to the same rights as if they were employed (or potentially vice versa). There are different categories of employment:
- employees, who are entitled to a wide range of employment rights and benefits;
- dependant workers, who are entitled to some, but not all, of those rights; and
- third party contractors (self employed), who receive very little protection under employment legislation.
This is important for the Uber drivers, as if they are considered to be workers, they are entitled to many more rights (including paid leave, etc.) than if they are considered self employed.
The merits or otherwise of the gig-economy and zero-hours contracts have been debated widely over the last few years. There are benefits to some people of having flexible working but for some this is the only work they can obtain. More and more people are looking to work for companies like Uber, in a job market which could see a rise in unemployment of up to 13%, in a worst case scenario (Office for Budget Responsibility Fiscal sustainability report July 2020) .
The Supreme Court decision will be of vital importance to those who drive for Uber or work for other such similar companies, and for their employers…..
The changes we have made to manage the spread of COVID 19 have led to improvements in the environment (albeit short-term) and in some cases improvements to the quality of life, it’s been a period of reflection for many of us, as individuals and employers. For some sectors, this will be a time to flourish, sadly for others it will be a long road to recovery. Anecdotally, the number of retirements is increasing following furlough and there is a strong possibility of a baby boom in the first half of next year!
Inevitably and it is always with much regret for employers, financial challenges have necessitated the need to consider making roles redundant but for others, the situation has created more opportunities. As an employer, it is time to consider your outgoings and you may want to consider the following opportunities when seeking to sustain jobs:
- Homeworking means there is the potential to save on travel expenses, printing and other consumables
- Review your supplier contracts
- Implementation of new technology
- Consider news ways of working for example shift patterns
- Online trading
- The use of temporary staff to navigate peaks and troughs in demand as businesses catch up with backlogs in production and or a reduction in certain types of activity
The Government announced support for those looking to for a new job and needing to learn new skills, particularly young workers.
As an employer, you may want to consider an apprentice. In England, if you employ a new apprentice between 1 August 2020 and 31 January 2021, you will receive a payment of £2,000 for each new apprentice you hire aged under 25, and a £1,500 payment for each new apprentice you hire aged 25 and over.
The Government wants to create six-month work placements aimed at those aged 16-24 who are on Universal Credit and are deemed to be at risk of long-term unemployment. Funding will be available for each placement. It will cover 100% of the relevant National Minimum Wage for 25 hours a week, plus the associated employer National Insurance contributions and employer minimum automatic enrolment contributions.
The current furlough scheme has been extended to the end of October 2020.
The deadline to furlough an employee for the first time was 10 June 2020.
You have until the end of July to make a claim for June wage costs.
The number of furloughed employees claimed for after 1 July in any one claim period cannot exceed the maximum number claimed for in any one claim made prior to that date.
Furloughed staff can now return part-time for a minimum period of one week.
We strongly advise that you keep records of your agreements with your employees to place them on furlough or to move them to flexible furlough and retain those records for at least 5 years.
On 10 July the Government’s travel advice changed, with exemptions removed for travelling to certain countries and territories that no longer pose a high risk for British travellers’.
As an employer, we recommend you work with your employees to understand what their travel plans are. Look at the best way of supporting employees to get the break they need and consider family or financial commitments they may have as a result of decisions made before COVID-19. They may be able to look at whether they can delay their travel plans or transfer their travel to a destination without quarantine restrictions.
If you do have employees that need to quarantine upon returning to the UK you need to consider if they can work from home or if you could provide alternative work which can be undertaken from home.
If an employee cannot do their job from home, possible options are:
- They need to take extra annual leave to cover the 14 days of self-isolation. In some cases, this might mean their annual leave request is refused.
- Place an employee on furlough for the time they’re self-isolating.
- Provide the opportunity for employees to make up the hours taken to observe quarantine over an extended period of time
- Ask your employee to use additional annual leave to observe quarantine
- Ask you, employee, to take unpaid leave.
If you wish to cancel an employee’s planned annual leave you must give them at least the same number of days’ notice as the original holiday request. We strongly recommend you consider your reasons for wanting to cancel an employee’s holiday and have a conversation with your employee if this is something you want them to do and document the outcome.
If you would like an employee to take their annual leave at a specific time you must provide notice which is double the length of the period of holiday you are asking to be taken, i.e. two weeks notice of a one week holiday and four weeks notice of a two week holiday.
The government has announced that shielding will be paused from 1 August 2020.
As an employer, you need to consider whether shielding employees can continue to work from home.
If they can’t, you need to undertake a risk assessment of the work environment, alongside an individual COVID-19 risk assessment prior to the employees return to work.
Please refer to the blog post – “Employees Returning to Work” .
You may have some employees who will struggle to find childcare over the summer holidays.
Encourage employees to research childcare arrangements available in your local area and to share information with each other.
Subject to business requirements, your employees could take annual leave but remember this may be for an extended period.
You could continue to furlough staff.
We recommend that you are flexible and work with your employees to find a solution that works for all parties and as always, document any arrangements you make.
On 8 July 2020, the Government announced the Job Retention Bonus to encourage employers to retain furloughed employees or workers.
The bonus is to be paid to jobs furloughed before 5 July 2020.
The bonus is a one-off payment of £1,000 for every furloughed employee who remains continuously employed through to the end of January 2021.
You need to remember that employees must earn above the Lower Earnings Limit (£520 per month) on average between the end of the Coronavirus Job Retention Scheme and the end of January 2021.
Payments will be made from February 2021.
In all cases, the health and safety of your employees must be a priority. This is not only their physical safety, but their mental health must be considered too.
Where you employ staff, who are known to be clinically vulnerable (have received a letter or text from their GP for example), you should do all you can to support working from home or in a COVID safe environment. A COVID safe environment is one which has enabled social distancing and implemented the appropriate mitigation. Key to this process is the use of a personal health risk assessment and a work environment risk assessment.
Employees Returning to Work
As your employees return to work, you should undertake a COVID-19 risk assessment in consultation with your employees and trade unions and if you employ over 50 workers you are expected to publish it on your website.
You need to consider the two-metre social distancing rule and it should be enforced wherever possible to manage the transmission risk. Where you cannot provide two-metre social distancing you can seek to provide 1 metre + arrangements with appropriate mitigation such as screens and additional PPE. It is important to keep exposure to riskier activities as short as possible. You should consider the use of screens or barriers to separate people from each other and use back-to-back or side-to-side working rather than face-to-face. Look into the option of the use of ‘fixed teams or partnering’ so each person works with only a few others. It is also important to reinforce cleaning processes and good hand hygiene.
Legislation does provide statutory protection for employees who reasonably believe there to be serious and imminent danger and who refuse to undertake duties or attend the workplace as a result. What is reasonable will depend on the facts in each case. It is very important you have an open dialogue with employees who raise concerns or those you know could be impacted by their workplace environment. Always record these meetings in writing to accurately reflect the conversations.
For tips about a COVID Secure Workplace check out our friends at Grounded Safety.
Over the past few weeks, the Government has moved to provide more support to employers and have been relaxing their guidance for clinically vulnerable people who are currently shielding. The advice is updated regularly and as an employer, you will need to monitor this advice proactively to ensure legislation and guidelines are understood and followed.
There is so much to consider as we adapt to the new normal. Over the next few days, we are going to provide a mini-series of blog updates – HR In The New Normal.
The key is to have an open dialogue with your employees and where possible include them in your thinking especially regarding their return to work, if they have to make additional plans for childcare over the summer holidays and if they have holiday plans.