The "Good Work Plan" – employment status and atypical working
A number of high profile "gig economy" cases, which have seen the classification of atypical employment models operated by Uber, Addison Lee and others challenged in the Employment Tribunals, have brought the abuse of vulnerable workers increasingly into the spotlight. In this update, we will look at the government's proposed reforms in this area, put forward in the "Good Work Plan" published earlier this week.
The government's most significant, and likely most controversial, proposal to tackle abuse is to provide a clear definition in legislation of "employee", "worker" and "self-employed" status. In line with the direction of travel in recent case law, the government proposes to place greater emphasis going forward on control exerted by the employer, and to move focus away from personal service and contractual substitution rights. In an ambitious move, the government will also seek to align definitions with the tests applied under UK tax legislation. It is telling that, even after concluding a comprehensive consultation in relation to the employment status definition earlier this year, the government is as yet unable to put forward any concrete proposals. We are sceptical of the possibility of this change resulting in anything much more than the codification of existing case law principles, but we await the government's proposals with interest.
Other proposals centre on the rights of those working under atypical arrangements, including a right for workers with a minimum of 26 weeks' service to request a more fixed working pattern. It appears that the right will function in the same way as the existing right to request flexible working arrangements: employers will be required to give any request reasonable consideration and respond within fixed timeframes, but will nonetheless have broad discretion to reject a request where there are reasonable grounds to do so.
A further key change in this area looks to continuity of employment. The Taylor Review identified a gap in employment rights where employees work intermittently for an employer and are unable to build up continuity of service. Under current law, gaps in employment of over one week will break continuity. The proposal is for this period to be extended to four weeks. While there is no obvious downside to this change, it is questionable how many individuals are likely to be affected: continuity of service is only generally pertinent in relation to individuals who have employee status. Most individuals working intermittently with gaps of up to four weeks between assignments are unlikely to be working in sufficiently stable conditions to attain employment status, and are therefore unlikely to benefit from this change.
Co-Authored by Hannah Disselbeck