UK: And Finally A Look Forward To What's Happening In Employment News For August 2017

Last Updated: 29 August 2017
Article by Nicholas Le Riche

In March 2017, an Employment Tribunal held that a bicycle courier engaged by Excel was a worker and therefore entitled to receive holiday pay. Prior to this ruling, Excel's business was sold to CitySprint, which continues to engage the courier, but still treats him as a self-employed contractor despite the outcome of the case. IWGB is now supporting the courier in a further Tribunal case alleging that, as a worker, he was covered by TUPE when Excel's business was sold to CitySprint and that CitySprint is therefore in breach of its obligations by failing to recognise his worker status. There is no case law on whether workers fall under the extended definition of 'employee' in the TUPE Regulations, although it is clear that genuinely self-employed consultants working under a contract for services are not covered. IWGB describes this as a landmark case which could establish the first legal precedent on whether TUPE transfers cover workers as well as employees.

On 1 May 2017, the Work and Pensions Committee published its report on self-employment and the gig economy. This report highlights the myth that flexible work is contingent on self-employment and criticises the exploitative behaviour of some employers. It also makes a number of recommendations, including having a default position that individuals are workers rather than being self-employed, with companies wishing to deviate from this model having to justify their case for doing so; introducing measures to encourage the self-employed to save for retirement; and equalising national insurance contributions made by employees and the self-employed.

The Office for National Statistics has published data showing that the number of working days lost to sickness or injury in the UK in 2016 was 137.3 million. This is equivalent to 4.3 days per worker, the lowest since records began in 1993. Minor illnesses, musculoskeletal problems and mental health issues were the most common reasons for absence. The highest rates of sick leave were in Wales (2.6%) and Scotland (2.5%), while London had the lowest rate of sick leave in the UK (1.4%). The groups that have seen the greatest reduction in sickness absence rates over the last 20 years are workers with long term health conditions, workers aged 50 to 64 and those in the public sector.

The Information Commissioner's Office (ICO) has warned businesses that they should act now to ensure compliance with the EU General Data Protection Regulation (GDPR) which will come into force on 25 May 2018. The Government has already confirmed that Brexit will not affect the commencement of the GDPR. Various checklists and toolkits have been published on the ICO's website to help organisations assess their progress in preparing for the new requirements. The European Commission has announced that it will be working with member states and companies to ensure harmonisation in implementation, and it will also launch a campaign to raise awareness of data protection rights amongst EU citizens.

The Court of Appeal has ruled that the current criminal records disclosure scheme has insufficient safeguards and must be amended. In four linked cases, each applicant had claimed that the disclosure of their past records significantly hampered their ability to obtain work, amounting to a violation of the right to respect for their private life under Article 8 of the European Convention on Human Rights. In one case, for example, the Court ruled that the disclosure of an ABH conviction 31 years after the event, which occurred when the claimant was 16, was not proportionate or necessary as it could not have any relevance to an assessment of the current risk he might pose to the public. The Court held that the criminal records disclosure scheme should be changed to include a mechanism to weigh up the nature of the offence, the lapse of time and the relevance of the information to the employment being sought. It will now be for Parliament to devise the details of a new scheme.

The Work and Pensions Committee has published a report on how the UK is dealing with victims of modern slavery. It estimates that there are up to 13,000 victims in the UK. The report makes several key recommendations for improving the procedures for identifying and supporting victims. These include monitoring the re-trafficking of victims; giving victims at least one year's leave to remain in the UK with a personal plan for their recovery and the same recourse to benefits and services as asylum seekers; improving the prosecution rate for individuals guilty of modern slavery offences; and training front-line DWP staff to identify and report potential cases of slavery.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Nicholas Le Riche
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