Workers, EU Directives and the Gig Economy

Morrish SolicitorsUncategorised

Workers, EU Directives and the gig economy

The speed at which the gig economy has expanded and the often disputed definition of worker within this sector has led to a number of recent high-profile cases concerning the protection afforded by EU directives; either directly, in cases such as Dewhurst and Others v Revisecatch Limited t/a Ecourier and City Sprint (UK) Ltd 2018 in which it was established that TUPE rights should include workers not just employees, or indirectly, in cases such as the long running Uber BV & Ors v Aslam & Ors, which centres on what constitutes worker status (and therefore the EU derived rights that status affords).

The disparity between the intentions of a number of EU Directives and their application in domestic employment law has been highlighted even further, and with sometimes tragic consequences, during the Corona Virus Pandemic.

At a time when protection under Health and Safety legislation was more crucial than ever it became apparent that many ‘gig’ economy workers had been left with little protection when it came to both the provision of PPE and the right not to suffer a detriment should they need to protect themselves from the dangers presented in working on the ‘front line’. The Office of National Statistics showed as early as May that workers in ‘gig’ economy occupations, such as couriers, security, social care and private hire car/coach drivers, were suffering a much higher than average Covid-related mortality rate.

It was this situation and over 100 specific complaints from their members that prompted the Independent Workers of Great Britain Trades Union to challenge via Judicial Review what it considered the UK Government’s failure to properly implement two vital EU Health and Safety Directives.

The Union argued (in R (IWGB) v Secretary of State for Work and Pensions & Ors [2020] EWHC 3050 (Admin) that these Directives plainly intended domestic law to apply to all ‘workers’, and not limit the attendant rights and protections to employees only

Although the High Court held that Article 5 and 6 of the Framework Directive (an employer’s general obligation towards the health and safety of their workers) had been become part of the UK Health and Safety at Work Act 1974 and the Management of Health and Safety Regulations 1999 (specifically the right to take appropriate steps to avoid danger) it also concluded that there was no provision within domestic law to protect workers from suffering a detriment should they exercise that right (something already provided for employees within the Employment Rights Act 1996) or a domestic right equivalent to the Article 3 of the PPE Directive.

Consequently, this declaration now makes it incumbent on the UK Government to amend the relevant legislation to extend these rights to workers.

However, though the Government has confirmed it does not intend to appeal the decision, the possibility remains that it could still choose to expressly exclude workers from the protections within the declaration should they not be implemented within domestic law before the Brexit transition period ends.

Notwithstanding the positive progress brought about by this case and others seeking to secure workers’ rights in a workforce model that demands flexibility above security, it is difficult to imagine that this progress could not be further challenged or even reversed under a convenient pretext of the economic necessities of a post-Covid, post-Brexit economy.

Amendments to the ACAS Early Conciliation Scheme – Extensions and Flexibility

The second tranche of changes to ET Procedure that began on 8th October under The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 has now come into effect.

From 1st December rules relating to the ACAS Early Conciliation scheme have changed in 2 significant aspects. Firstly, the 1-month conciliation period has been extended to a set 6 weeks only. This means the 2-week extension that was allowed in addition to the usual 1 month will no longer apply.

Although the rationale behind this is to give conciliators more time to contact parties (research showed that some respondents were only being contacted very much towards the end of the 1 month period) and to deal with the growing backlog of cases, which according to the Ministry of Justice’s own data had hit 45,000 by 23 August 2020, it remains to be seen if this opens up enough space to clear the backlog or results in more claims being lodged that may otherwise have settled after the kind of 11th hour ‘change of heart’ that was only possible through the use of the extension.

The second change is that conciliators will now have more flexibility to deal with minor errors in the EC form and obtain missing information necessary for the process. This is undoubtably positive in the context of avoiding the kind of delays or rejections that were unavoidable under the original rules. This amendment may also be more effective in light of the similar amendment to ET1 form rules brought in on 8th October which allows minor errors in an application to be amended at the discretion of the Tribunal Judge as opposed to the mandatory rejection required previously.

Whether the flexibility now afforded ACAS conciliators and Tribunal Judges will be accompanied by an increase in resources to allow them to make use of this power (a Judge still has to be convinced that an error is genuine and a conciliator will still need to take the time to obtain the missing information) is also something that remains to be seen, though it can be said that overall, it is probably a step in the right direction at this time.