Following the widely reported debate around employment status prompted in part by the disputes which resulted in cases such as Pimlico Plumbers, the UK government commissioned a wide ranging independent review, chaired by Matthew Taylor and involving a panel of experts. The resulting report entitled Good Work: The Taylor Review of modern working practices, was published in 2017, and made several recommendations including a proposal to create a new category of worker and to have universal right to a basic contract of employment. This prompted the current Government to state in their last election manifesto that they would take action for workers to have the right to request a ‘predictable and stable contract’. This right would arise after the worker had completed 26 weeks of service in relation to working variable hours. The review also recommended lengthening the permitted break in service from one week to one month for the purposes of employment protection rights like the ability to claim unfair dismissal. Following many delays caused partly by the coronavirus pandemic, firm legislative proposals to this effect have yet to materialise.
The 2022 Queen’s speech didn’t include the anticipated proposals for a comprehensive Employment Bill despite being nearly five years since the Taylor Review made its original recommendations. Such a Bill was also expected to capture new rights regarding flexible working and pregnancy discrimination. Consequently, there is still an air of uncertainty regarding many worker’s rights and according to some, an overarching feeling of disappointment for people engaged in the gig-economy who would have greatly benefited from greater clarification through legislative developments.
An inquiry led by Edinburgh’s Gig Economy Task Force has been one of the preliminary pieces of work spearheaded by the Council to understand the key issues and immediate changes that need to be taken in relation to the Scottish gig economy. On 24th March 2022, a report from the Task Force provided feedback and recommendations to the Council’s Housing, Homelessness and Fair Work Committee. It is hopeful that these recommendations will form the basis of an action plan to be brought before the committee in the Autumn. This action plan will focus on priorities of varying length which the Council will be requested to focus on in order to improve access to fair work for people working within the gig economy industry. Councilor Kate Campbell, Convener of the Housing, Homelessness and Fair Work Committee and chair of the Gig Economy Task Force stated that, “For many gig economy workers their shifts, performance monitoring and pay are controlled by an algorithm. This can be incredibly disempowering. We need to look at who has access to data, and how that data is used, and understand what reforms could empower workers”.
While local initiatives are welcome, they can’t address the bigger, national situation. Arguably, these initiatives are only necessary because government has not followed through on the earlier recommendations set out in the Taylor Review and subsequent manifesto commitments.
Where does this leave workers in the gig economy?
The recent problems encountered by couriers engaged by a company called Stuart, which provides delivery drivers for companies like Just Eat, highlight once again the precarious existence of many of these individuals. Some found themselves dismissed through no fault of their own, as a result of relying on what has been described as a defective “cut-price” GPS system. This was brought in by the company to save money following a hike in the cost of subscriptions for the market-leading GPS system which had been used previously by their drivers. Many of these workers are reported to be recent immigrants, taking low paid work in unfamiliar surroundings, with no choice but to depend on the systems provided to find their way around. Another feature of the system provided was the lack of direct human interaction, with little more than a “chatbot” function which provided no support in the event of a problem. It also appears that the company relied on the data generated by this defective system to justify the subsequent termination of these individuals’ engagement with them.
This rather sad story highlights a number of issues. Firstly, the already mentioned lack of protection for these workers by virtue of their status and the lack of concrete progress by successive governments despite various recommendations, promises and good intentions. Secondly, the extent to which technology, with all its imperfections, plays an increasing role in all our working lives. While it may be amusing to have a Teams call interrupted by an inquisitive child or the family pet, receiving an e-mail ending your employment without notice on the strength of data generated by a defective GPS device will be anything but. If the courier in question enjoyed the status of an employee, with full employment protection rights, what difference might that have made?
The benefits of being an employee
Arguably the most significant protection afforded to an employee is that acquired after two years’ continuous service with the same employer; the right not to be unfairly dismissed. This right, contained in the Employment Rights Act 1996 makes clear an employer looking to terminate someone’s employment must not only do so for a potentially fair reason, but must also act reasonably. In the context of an allegation of misconduct, an Employment Tribunal asked to assess the fairness of any dismissal will expect to see certain benchmarks being reached. The vintage but still widely recognised 1978 case of British Homes Stores v Burchell makes clear an employer must hold a genuine belief in the employee’s guilt, which must be based on reasonable grounds, after a reasonable degree of investigation.
Another benchmark revolves around process and the ACAS Code which requires there to be a fair hearing, allowing the employee to state their case and be accompanied if they wish by a colleague or trade union representative for support. Lastly, a fair process must allow for an appeal, if the employee feels there has been some procedural defect or if the decision has been disproportionately harsh.
Taking the example of the 55 couriers allegedly terminated by Stuart in recent months, whose cases have been highlighted by the Independent Workers Union of Great Britain, there appears to have been no human interaction of any description prior to an e-mail sent terminating their engagement. If an investigation had been conducted that may well have highlighted any technical issues with the GPS system. Had a hearing taken place each driver would have had the opportunity to explain their side of the situation, possibly prompting further investigation about what or who might be to blame. Either way it is not only possible but probably very likely that the drivers would have been exonerated and might still be working today.
These safeguards for employees, and the complete lack of any similar protection for many in the gig economy underline the need for change. The additional statutory protections not only help employees but also promote positive behaviors and better practice on the part of companies and employers. This makes for happier, more assured and ultimately more productive workers too. Though it might seem controversial at a time when the cost of living is on the rise, might it be worthwhile to pay a little more for a pizza in the knowledge that the person delivering it will be paid properly and treated fairly and decently should a question be raised over their performance?
The issue of technology
As a final thought, have we struck the best balance when it comes to technology and perhaps forgotten just how important human interaction is in the workplace? During the pandemic and subsequent lockdowns, we all got used to video conferencing and homeworking. In the post lockdown era, hybrid working has become much more prominent and for a great many, this still means a reduction in direct contact with our fellow workers compared to how we worked before. While such working arrangements undoubtedly have many benefits, there is a danger that we miss important human contact that allows us to detect the subtleties of body language, tone of language and non-verbal communication, especially when something might be amiss, which requires our action or support. Certainly in the example of the delivery drivers whose only interaction seemed to be an automated “chatbot”, we see one extreme. However, other such examples may be around the corner, as we see the increasing use of Artificial Intelligence, particularly in recruitment and selection scenarios. Algorithms are all very well but they predict outcomes based on data gathered and interpreted by imperfect humans. Automated decision-making will inevitably involve generalisation to make sense of that data and those subtleties that only humans can really detect (at present) will be unseen. The issues for job applicants and existing employees could be significant. For employers, what started as something to achieve convenience and efficiency, may through overuse, create unexpected risk.
If you are unsure of the basis on which you engage with your staff or have a question about employment status contact Chris Phillips cphillips@thorntons-law.co.uk or another member of the employment team on 03330 430350
