considerable differences in terms of
taxation (which are not the subject of this
article).
With Uber currently defending
themselves in Employment Tribunal and
Hermes the subject of unfavourable
media attention, questions of status in
the workplace are prevalent but what
are the issues in these cases, how might
they effect you (especially in Brighton
where a company’s need for staff can
be seasonal) and what should you do
about it?
Employees; that is those who are entitled
to be given work by their company and
who are obliged to accept that work;
are entitled to certain legal protections
such as the right to be paid at least
the National Minimum/Living Wage,
the right to paid holiday and the right
to a redundancy payment if they are
made redundant after at least 2 years
employment.
However where an organisation engages
a self employed contractor; a person
who is in business for themselves;
that contractor is not entitled to
these statutory rights and there are
There is also a third category of staff
called workers; effectively workers are
those who don’t meet the legal tests of
employment (usually because there is no
mutual obligation as regards offering and
accepting work) but who equally don’t
fall into the category of self employment
either.
The classic example of a worker is
somebody who is engaged on a zero
hours contract or as bank staff. Workers
have some legal protection (such as
the right to paid holiday and to receive
National Minimum/Living Wage) albeit
not to the same extent as employees.
Uber defines those who provide a taxi
service to the public via their app to be
‘driver partners’ and it treats them as
self employed but they are facing a legal
challenge from those drivers who are
asking the Tribunal to look behind Uber’s
‘doublespeak’ and formally recognise
them as workers thereby entitling them
to more rights.
Similar cases bought by a number
of bicycle couriers are pending and
should reach Tribunal later this year. If
Trust and confidence
There is an implied obligation on both
employer and employee not to act in
any way that is calculated to, or likely to,
breach trust and confidence.
The concept of trust and confidence
has developed over time through case
law and can encompass a wide range
of factors. While it is a mutual duty,
allegations that trust and confidence
have been breached are more commonly
raised by an employee about the actions
or behaviour of their employer.
A breach of trust and confidence can be
a one off act or it can be something that
amounts to the last straw; effectively the
‘straw that broke the camel’s back’.
If an employer fundamentally breaches
the obligation not to damage trust and
confidence, an employee may chose
to accept that breach and treat the
employment contract as repudiated.
That employee may then (if they have 2
or more year’s continuous employment)
bring a constructive unfair dismissal
claim on the grounds that they were
effectively forced out of their job.
Depending on the circumstances of the
breach they could bring a discrimination
claim, regardless as to their length of
service.
If an employee breaches their duty to the
employer, that breach could give rise to
an allegation of gross misconduct and
ultimately dismissal.
Examples of conduct by an employer
that might amount to a breach of trust
and confidence include:
• making unfounded negative comments
about an employee,
• making it impossible for an employee
to do their job (for example by giving
them too much work or not responding
to their requests for help with their
workload),
• unfairly taking disciplinary action,
• exercising discretion (for example to
award a bonus) in bad faith, and
• using (or permitting others to use) foul,
offensive or discriminatory language in
the workplace.
the judgements favour the individuals
in these cases we can expect to see a
redefining of the way staff are engaged
across a number of industries.
This issue of status is already pertinent
to many of Brighton’s organisations that
have a fluctuating need for staff due
to the annual influx of tourists in the
summer months meaning their need for
staff varies throughout the year.
The written agreement between
the parties, while relevant, is not
determinative of the question of status so
while it is important to ensure contracts
are in order, those contracts need to truly
reflect the intention of the parties and
the working relationship must, in reality,
reflect the written agreement.
If, for all intents and purposes, an individual
is an employee, the act of labelling them
otherwise in a written contract will not, o n
its own, convince a Tribunal.
If you have concerns as to status it is
best to seek advice at an early stage and
certainly before those concerns manifest
themselves in a dispute. There may be
steps you can take now to formalise your
working arrangements.
By Sam Dickinson
An employee may be found to have
breached their duty of trust and
confidence if they make disparaging
comments about their employer on social
media or falsely claim sick pay.
Acting reasonably and in an even handed
manner at all times is the key to ensuring
trust and confidence isn’t breached.
Employers would be well advised to
ensure that they have up to date antiharassment and anti-discrimination
procedures, ensure these procedures
are updated regularly and ensure that
they are communicated to all staff and
enforced where necessary.
A written disciplinary and grievance
policy is imperative and managers should
be given training so they know how to
deal with such matters in order to stop
those small niggles (that are present in
all workplaces) becoming big Tribunal
claims.
Employees are well advised to use the
policies that are available to them and
put any concerns they may have in
writing at an early stage.
By Sam Dickinson
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