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2. Categories of worker
[ch 2: pages 32-36]Most statutory employment rights depend on someone’s “employment status”. In other words, they depend on whether that person is an “employee”, a “worker” or genuinely “self-employed”. Reps need a good knowledge of these laws and their limitations to advise members on their rights.
Statutory employment rights are rights deriving from a particular Act of Parliament or other piece of legislation. Contractual rights can be enforced by anyone with a contract (whether or not in writing), but statutory rights are only available to the category of individuals identified in the particular statute.
The law governing employment status is extremely complex and as a result, a growing number of workers are discovering, usually once it is too late, that they have lost out on basic employment rights due to the way in which the work relationship has been structured.
The employment status rules were originally developed to suit a “standard” model of direct continuous employment and they have come under great pressure as a result of changes to the way many people are required to work, including the growth of the “gig economy”. Unions and the TUC have been calling for reform for many years. In 2016, the issue has been headline news, following union tribunal victories such as the litigation against transport service provider Uber, supported by the GMB (see the box on page 42), and high profile union campaigning on behalf of zero hours contract workers at workplaces such as online retailer Asos and high street retailer Sports Direct. There are three separate government or parliamentary reviews (see box below).
The Taylor Review
In November 2016, the government launched the Taylor review into “employment practices in the modern economy”, led by Matthew Taylor, a former adviser to Tony Blair, to report by June 2017. Its remit is to consider whether employment practices need to change to keep pace with modern business models, including digital platforms, and the implications for worker rights, employer responsibilities and the regulatory framework. The review has six main themes, including the extent to which "employment status" laws need updating to take account of the growth of work using digital “on demand” platforms. The full terms of reference are available on the review webpage.
The BEIS select committee inquiry into the “future world of work”
This inquiry by the Business Energy and Industrial Strategy Select Committee follows on from other select committee inquiries into working practices at Sports Direct and into the “digital economy”. Like the Taylor review, it focuses on the changing nature of work and the status and rights of different categories of workers, especially those in the “gig” economy, including low pay and poor working conditions.
The terms of reference are available from the Parliament.uk website and the results will feed into the Taylor review.
The Employment Status review
In February 2017, the government published its Employment Status Review, confusingly dated December 2015. This document sets out the current employment status laws, looks at the position of some atypical workers, including zero hours contract workers, contractors, freelancers, consultants, interns, agency workers, volunteers and the falsely self-employed, and considers possible reforms, without making recommendations.
Employment status law is made more confusing by the fact that while statutory employment rights depend on three different types of employment status (“employee”, “worker” and “self-employed”), HM Revenue & Customs (HMRC) generally uses only two categories of employment status to work out employment-related tax liabilities, namely “employed” and “self-employed”.
The genuinely self-employed (also called “independent contractors”) are neither workers nor employees. Instead they are in business on their own account, offering their services at “arms-length” to their own customers, and taking the business risk of failure and the financial rewards of success when the business grows. Since they are neither employees nor workers, they have few statutory employment rights. This lack of rights had led to an explosion in “false self-employment” by employers seeking to minimise their employment and tax liabilities by mis-describing their workers’ employment status (see page 39).
As well as explaining the difference between employees, workers and the self-employed, this Chapter outlines some of the other work arrangements reps may encounter, including:
• umbrella companies;
• personal service companies;
• zero hours contracts;
• part-time workers;
• homeworkers;
• volunteers and interns;
• young workers;
• apprentices;
• children;
• temporary (fixed-term) employees;
• agency workers;
• crown employees;
• posted workers; and
• employee shareholders.
More detailed information can be found in the LRD booklet Casualisation at work — a guide for union reps, 2014 (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1733).
In 2016, Acas updated its guidance on employment status, available from its website (www.acas.org.uk/index.aspx?articleid=5071).
The TUC wants employment status law to be reformed so that all workers benefit from the same basic floor of rights at work, for clear information to be provided and for the system of enforcement to be strengthened; especially through the abolition of tribunal fees. However overall, says the TUC, individual rights can only take workers so far. Strong trade unions and effective collective bargaining machinery are the best way to secure decent work for all workers.
Main employment rights in summary
Here is a summary of the main employment rights that apply to employees, workers and agency workers.
Main rights available to employees and “workers”
• Information about pay, notice and holiday entitlement (see Chapter 4);
• National minimum wage (see Chapter 4);
• Pension auto-enrolment rights – subject to earnings thresholds (see Chapter 4);
• Protection against unlawful pay deductions (see Chapter 4);
• Working hours, rest breaks and a 48-hour week (see Chapter 4);
• Statutory holidays (see Chapter 4);
• Protection from victimisation for being a union member or engaging in union activities at an appropriate time (see Chapter 5);
• Right to have your terms negotiated through collective bargaining under the statutory recognition procedure (see Chapter 5);
• Right to be accompanied at a disciplinary/grievance hearing (see Chapters 5 and 10);
• Protection from discrimination (see Chapter 7);
• Data protection rights, including the right to make a data subject access request (see Chapter 4);
• Statutory protection from risk to health and safety (see LRD’s companion guide, Health and Safety Law at Work);
• Protection against detriment for whistleblowing (see Chapter 4);
• Protection against detriment and right not to be refused work because of a blacklist (see Chapter 5); and
• Protection of a zero hours contract worker against detriment if they work for another employer in breach of a contractual ban (Chapter 2).
Main rights available to employees but not “workers”
• Written statement of particulars (see Chapter 3);
• Statutory minimum notice (see Chapter 10);
• Protection from unfair dismissal (see Chapter 10);
• Implied contract terms such as mutual trust and confidence (see Chapter 3);
• Express contractual rights in the employment contract (see Chapter 3);
• Reasonable paid time off for trade union reps for union duties and training where a union is recognised (see Chapter 5);
• Reasonable paid time off for union learning reps where a union is recognised (see Chapter 5);
• Reasonable unpaid time off for members to engage in union activities where a union is recognised (see Chapter 5);
• Reasonable paid time off for safety rep duties and protection from detriment or dismissal for acting as a safety rep (see Chapter 5);
• Time off for public duties (see Chapter 4);
• Parental leave and pay rights (qualifying agency workers also have rights to pay, but not to leave) (see Chapter 9);
• Time off for antenatal and adoption appointments and maternity suspension rights (qualifying agency workers also have these rights) (see Chapter 9);
• Statutory sick pay (qualifying agency workers also have these rights) (see Chapter 8);
• Unpaid parental leave (see Chapter 9);
• Unpaid dependency leave (see Chapter 9);
• Right to request flexible working (see Chapter 9);
• Right to request time off for study or training (see Chapter 4);
• Protection in business transfers (TUPE) (see Chapter 12);
• Redundancy pay and rights (see Chapter 11);
• Guarantee pay on layoffs or short time working (see Chapter 11); and
• Medical suspension pay (see Chapter 9).
Rights available to temporary agency workers
As well as the basic rights available to all “workers”, temporary agency workers have additional rights explained on page 63 of this Chapter.
Many of the rights listed above depend on service length and/or earnings. See the appropriate Chapter of this guide for detailed information about eligibility.