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International Labor and Employment Law

The Top Ten Things You Should Know About UK Employment Law

flag for European Unionflag for United KingdomPosted in European Union, Privacy, United Kingdom, Whistleblowing

top_ten_uk_employment_lawWhat 2016 lacked in employment law changes, it made up with political surprises (Brexit) and sweeping data protection changes (the GDPR). Due to these dynamic changes and in anticipation of what lies ahead, our UK employment team published the Top Ten Things to Know About the UK Employment Law Landscape in 2017. In this briefing, we highlight recent legal developments, look ahead to what’s coming in 2017 and provide practical steps companies can proactively take to respond to this ever-changing landscape.

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UK Employment Tribunal Rules that Individuals Working in the “Gig Economy” are Entitled to Paid Leave

flag for European Unionflag for United KingdomPosted in Compensation & Benefits, Employment Contracts, European Union, United Kingdom

An Employment Tribunal in the United Kingdom ruled that a bicycle courier for CitySprint, a delivery firm, was a worker rather than self-employed and therefore entitled to paid leave.  This is the most recent decision in a string of UK cases dealing with the “gig economy,” namely, repeated short-term work such as ride-sharing or courier services.

In the most recent case, Margaret Dewhurst worked as a bicycle courier for CitySprint, a company that organized and supplied courier services.  Ms. Dewhurst took two days of vacation and brought a claim against CitySprint requesting pay for those two days of leave under the United Kingdom’s Working Time Regulations.  Importantly, UK legislation differentiates between individuals who are “self-employed” and workers.  While workers are not entitled to the same rights as employees, they have certain rights which are not enjoyed by self-employed independent contractors, including the right to be paid the minimum wage, protections under whistleblowing legislation and the right to receive paid annual leave.

Turning to whether Ms. Dewhurst was a worker or self-employed, the Tribunal noted that she had signed a series of computer-based agreements on her first day, including that she is “a self-employed contractor” and that she is “an independent business….”  The agreements were not explained to Ms. Dewhurst.  Therefore, the Tribunal discounted these agreements, noting they had likely been “generated by the ‘army of lawyers’” and that they “illustrate[d] the inequality of bargaining power” between Ms. Dewhurst and CitySprint.

The Tribunal instead looked to the “true situation” of the work relationship, ruling that the while the express terms of the contract were a “key piece[] in the jigsaw,” they were ultimately not dispositive.  Ruling that Ms. Dewhurst was a worker rather than a self-employed contractor, the Tribunal focused on her day to day work. Specifically, the Tribunal noted that:

  • Ms. Dewhurst tended to work established days and hours;
  • Ms. Dewhurst did not work for other businesses;
  • Ms. Dewhurst received training about how to perform her courier duties;
  • Ms. Dewhurst had to wear a uniform;
  • Ms. Dewhurst did not have full control over accepting or declining jobs;
  • CitSprint handled billing client; and
  • CitySprint allocated the jobs.

The Tribunal concluded by noting that “[o]verall, [couriers] have little autonomy to determine the manner in which their services are performed and no change at all to dictate its terms.  In public, in dealings with their controllers and between themselves[,] the couriers regard themselves as part of the CitySprint family, for better and for worse.”  Therefore, the Tribunal ruled that Ms. Dewhurst was a worker and entitled to paid leave.

While this decision is technically tied to the facts of the case, its reasoning will likely apply to other workers in the “gig economy” who are part of a strong corporate structure with clear requirements and oversight. In particular, it highlights the potential risk of misclassifying individuals as independent contractors when they are in fact workers.  We will continue to monitor the rapidly developing law in this area.

UK Gender Pay Gap Reporting

flag for United KingdomPosted in United Kingdom

We wrote about the Draft Gender Pay Gap Regulations in the April 2016 edition of A Month in UK Employment Law. In December 2016, the UK Government published a revised version of these Regulations which are expected to come into force on 6 April 2017.

As a reminder, the Regulations require private sector employers in the UK with at least 250 employees to publish certain information about the differences in pay between men and women. It is anticipated that 7,960 employers and around 11 million employees will be affected (34% of the total UK workforce).

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The right to disconnect: a new right for French employees?

flag for FrancePosted in France, Working Time

A new law, called El Khomri law, passed on August 8th, 2016 in France providing a right to disconnect for employees.

Such right is entered into force on January 1st, 2017

According to the law, it belongs to the employers and the unions to negotiate this new right to determine its modalities of application and of control. Such negotiation should take place in companies having at least 50 employees and should provide for the implementation of mechanisms of regulation regarding the use of the new technologies in order to ensure the compliance with rest times and holidays and the familial and personal life of the employees. Continue Reading

High Court Decision Serves as a Cautionary Tale for Office Holiday Parties

flag for European Unionflag for United KingdomPosted in Code of Conducts, European Union, United Kingdom

The High Court ruled on December 1, 2016 that Northampton Recruitment Limited was not liable when a manager punched an employee twice in the head after a Christmas party. While the Company was not held liable, the case is a cautionary tale for companies during the holiday season.

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UK Tribunal Allows Expatriate to Bring Claims in the UK

flag for European Unionflag for United KingdomPosted in European Union, Expatriation, United Kingdom

In Jeffrey v. The British Council 2016, the Employment Appeal Tribunal (“EAT”) ruled that an employee who had an “exceptional degree of connection” with the United Kingdom could bring claims in the UK even though he had been working outside of the UK for over 20 years. This provides an important exception to the general rule that employees have to be working in the UK to bring employment claims there.

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Record fine handed to TalkTalk in data protection breach in the UK

flag for United KingdomPosted in Privacy, United Kingdom

As previously reported on our Privacy Blog, TalkTalk, a major UK telecoms company, has been fined  a record breaking £400,000 for a data breach after they were hacked.  This fine, given by the ICO (the UK’s data protection authority), followed an in-depth investigation into an attack by hackers on TalkTalk’s systems where hackers obtained the details of 156,959 customers, including their names, addresses, dates of birth, phone numbers and email addresses. The maximum fine the ICO can require companies to pay is £500,000. Read the full post on our Privacy Law Blog.

The War on Modern Slavery Continues

flag for United KingdomPosted in Code of Conducts, United Kingdom

On July 30, 2016, newly-elected British Prime Minister, Theresa May, wrote an article detailing how her government would lead the charge in combatting modern slavery. As a major proponent of the UK Modern Slavery Act (and one who played a key role in the Act’s passage as former Home Secretary), May pledged to make it her personal mission to help eradicate the “barbaric evil” of slavery and human trafficking, calling it the “great human rights issue of our time.”  In doing so, she announced the allocation of £33 million from her aid budget to create a 5-year International Modern Slavery Fund focused on high-risk countries.

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EU Advocate General Holds that Certain Forms of Indirect Religious Discrimination Could be Justified

flag for European Unionflag for United StatesPosted in Belgium, Discrimination, European Union, Terminations, United States

On May 31, 2016, the Advocate General (“AG”) of the European Court of Justice issued its opinion in a case relating to a Muslim employee wearing a headscarf at work. In the case, Samira Achbita v. G4S Secure Solutions NV, Case C-157/15, the AG stated that a neutral policy prohibiting employees from wearing visible religious symbols was not direct discrimination under Article 2(2)(a) of Directive 2000/78 EC, the EU Directive that addresses discrimination in the workplace. Furthermore, the AG indicated that such a policy may not constitute indirect discrimination either, and therefore not be illegal, provided it is based on a legitimate and proportional policy requiring religious or ideological neutrality in the workplace. This decision, while not binding, stands in stark contrast to the law on the subject in the United States, where just in 2015 the Supreme Court held that failing to hire an applicant because she wore a headscarf constituted discrimination.

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