Category Archives: Insight Article

Section 230(3) of the Employment Rights Act contains a two-part definition for worker status. Part one defines a worker as an individual who has entered into or works under a contract of employment (all employees, therefore, are also workers).

The second part of the definition requires different elements to be present:

• there must be a contract with the organisation, but this contract does not have to be expressly written, as was the case in Uber (see my earlier article on this latest case), where the contracts were implied;
• the individual must be contracted to do the work personally (the personal service test) and not in a business capacity. It follows then, that the contract cannot be with a customer or client of any business undertaking; and
• finally, there must be mutuality of obligation, meaning work must be given and paid for by the organisation.

A defining feature of a worker is that they must turn up for work even if they do not want to, whereas someone who is self-employed can decide when they work.

Another feature is that self-employed individuals have control over the way in which the work is carried out. Self-employed people also pay their own tax and national insurance, whereas workers and employees pay tax using the PAYE system, which deducts the tax and national insurance at source.

If you need help determining your employment status or believe you have a worker status claim, call Karen Cole today.

Note: This is not legal advice; it provides information of general interest about current legal issues.

This case highlights the importance of properly identifying the employment status of individuals to know what employment rights will apply.

Why does employment status matter?

The development of the gig economy, in which individuals are engaged by businesses on a flexible and ad hoc basis, has caused problems in determining employment status.

In employment law, the distinction between the three categories of employment status (employee, worker and self-employed independent contractor) is significant for many reasons.

Some core legal protections apply only to employees, significantly the right not to be unfairly dismissed and the right to receive a statutory redundancy payment.

Workers, though, are covered by some important protections too. For instance, workers are entitled to:

• paid annual leave (something which is not enjoyed by the self-employed);
• the right to receive the National Minimum Wage; and

Uber B.V -v- Aslam & Others

The key deciding factor in this decision was the degree of subordination and control that Uber drivers were subjected to.

When passing judgment, Lord Leggatt stated that worker status was a question of statutory interpretation rather than contractual interpretation.

This means that it does not matter what name the parties give to their working arrangement. It is the factual day-to-day practice of that arrangement which is the key to interpreting how the law will define it.

Lord Leggatt surmised that the legislation is there to protect vulnerable individuals who are in a position of subordination and dependence on another person who controls their work. Therefore, where there is a greater degree of control, it is likely that the individual will be a worker rather than self-employed.

The subordination and control exercised by Uber manifested itself in several ways.

1. the drivers’ pay was fixed by Uber and the contractual terms under which drivers performed their services was also controlled by Uber. Flagging Uber drivers as workers, as the self-employed can set their own fees and contractual terms; and
2. once Uber drivers logged into the app, they had little choice in accepting rides. Uber could penalise drivers based on their trip cancellation rate, demonstrating the drivers’ subordination to Uber.

The effect of this decision and the importance placed on the purpose of the legislation demonstrates that the courts should look to protect workers, irrespective of any signed contractual documents.

This emphasises the Supreme Court’s decision in Autoclenz Limited v Belcher, which made clear that tribunals should look at the substance of any contract and not just its form.

“Employers would be wise to review the arrangements in place regarding their exposure to worker status claims and the financial consequences of a successful claim.”

Many employers will state on an employment contract that an individual is self-employed for various reasons. However, the court will look at the actual relationship between the parties and the whole context of that relationship, not just the contract itself.

Speak to Karen Cole today, who can review the reality of the working arrangement and what rights and protections will apply.

Note: This is not legal advice; it provides information of general interest about current legal issues.

Record numbers signed up to ditch meat during January for the Veganuary Challenge, but even when burgers are back on the menu, employers need to keep an eye on safeguarding ethical beliefs for vegans who make it a lifestyle.

The interest in veganism has seen the numbers undertaking Veganuary soar in recent years, with 500,000 people taking part in 2021. But while many are simply testing the health benefits of a short-term change in their fridge contents, for those people who choose to become vegan in the long term, it is often not just about diet, but rather a way of life. If they make an ethical decision to live without the use of animal products, this will affect what a person wears, the products they use, or their work and leisure activities.

The Vegan Society describe veganism as “…a philosophy and way of living which seeks to exclude … exploitation of, and cruelty to, animals for food, clothing or any other purpose; and by extension, promotes the development and use of animal-free alternatives for the benefit of animals, humans and the environment”.

Such beliefs caused a clash when long-standing ethical vegan Jordi Casamitjana challenged his employer, The League Against Cruel Sports, for the way pension funds were invested. The League is an animal welfare charity which campaigns against sports such as fox hunting or bullfighting and Mr Casamitjana was a qualified zoologist who had dedicated his life to helping animals in need, working in animal protection most of his working life, becoming a strict vegan in 2000.

On joining the League, he was enrolled into their pension scheme but later discovered that the fund was investing in companies known to engage in animal testing, such as pharmaceutical or tobacco companies. After objecting, and there being no change in practice, Mr Casamitjana wrote to colleagues setting out his discovery, and when he was later dismissed claimed this was due to his ethical veganism, although the League argued that the dismissal was on conduct grounds.

When the case was first heard by the Employment Tribunal, the focus was not on whether he had been unfairly dismissed, but on whether ethical veganism was a philosophical belief capable of protection under the Equality Act 2010. The Act prevents direct and indirect discrimination based on protected characteristics, which include:

• Gender
• Age
• Disability
• Race
• sexual orientation
• personal relationship status, and
• religion or belief.

These characteristics extend to consumers, the workplace, education, public services, private clubs or associations and when buying or renting property.

To satisfy the definition of a philosophical belief, ethical veganism had to pass a series of tests, as set out in the Equality and Human Rights Commission Code of Practice on Employment 2011. These include whether it was formed in respect of a weighty and substantial aspect of human life, has attained a level of cogency and coherence and could be worthy of respect in a democratic society. It must not be incompatible with human dignity nor conflict with the fundamental rights of others.

In giving his ruling, Judge Robin Postle said he was “overwhelmingly” satisfied that ethical veganism constituted a philosophical belief and so those holding such beliefs should be protected against discrimination.

This ruling distinguished ethical veganism from vegetarianism, which was tested in an earlier case – Conisbee v Crossley Farms Limited & Others. Here the Employment Tribunal decided that vegetarianism was not a philosophical belief which qualified for protection under the Equality Act 2010, saying it did not attain the necessary level of ‘cogency, seriousness, cohesion and importance’ required and that the practice could be adopted for a variety of reasons, such as lifestyle, health, diet or concerns about animal welfare.

Employment partner, Karen Cole said:

“While last year’s decision in the case of Mr Casamitjana does not have a binding effect on other tribunals, as each case will depend on its own facts, it highlights the need for employers to continually review their practices and policies to be sure they are not discriminating against any employees because of their beliefs.

The implications are perhaps more significant given the continued rise in popularity of veganism. Figures suggest there are as many as 2.2m vegans in the UK currently, compared to just 150,000 in 2014. That rise has been pushed in no small part by reports from the UN and academics, highlighting how switching to a plant-based diet could help fight climate change.”

While the ruling may appear to open the floodgate for vegan-related demand by employees – such as whether leather chairs are acceptable or if they should handle products containing animal ingredients – tribunals will be taking a measured approach in deciding whether such issues are discriminatory. A similar case involving a Muslim employee, who argued his beliefs prevented him from handling alcoholic products, was unsuccessful when heard by the tribunal.

Karen added:

“Best practice is to ensure that vegan beliefs are accommodated in the same way as other beliefs, such as ensuring that any food provision for employees in canteens takes account of vegan preferences or avoiding demands that employees wear leather shoes. Staff training should be kept up to date as to what constitutes discrimination and unacceptable behaviour, and employees should have an identified point of contact to report incidents of discrimination.

This reflects the ongoing need for business recruitment and working practices to keep pace with both the law and changing attitudes across society. Failure to keep up with such trends is no defence when it comes to employers providing appropriate protection for employees.”

For more information on Veganism, contact Karen Cole.

Note: This article is not legal advice; it provides information of general interest about current legal issues.