In the courts

Employment status

The gig economy has generated a large volume of litigation, most notably on the difficult question of when someone should be categorised as a worker or employee. That categorisation affects the level of employment protection – particularly working time, the minimum wage, and unfair dismissal rights - as well as tax. Cases involving Uber and Pimlico Plumbers have reached the Supreme Court and one of the critical issues has been the extent to which the individual is required to provide services themselves, or can send a substitute to do the work. Every case is highly fact-specific, but as a general rule:

• an unfettered right to provide a substitute usually means the individual is an independent contractor, and not a worker;
• a conditional right to provide a substitute could be an indicator either way. It depends on how the right is framed, and how it operates in practice;
• a right to substitute only when the individual cannot carry out the work typically indicates worker status;
• if the individual can send any substitute who is suitably qualified, that normally indicates independent contractor status; and
• if a substitute can only be sent with the end-user’s permission, then that may be a sign of worker status.

The Court of Appeal has recently looked at these general rules in the context of a moped courier. The company operated via an app, through which couriers could select specific time slots. Once signed up for a slot, the courier was obliged to complete it, unless another courier took it over. The original Tribunal found the courier in this case was a worker, The Court of Appeal agreed. Although the courier was free to try to release a booked slot, their obligation remained in place unless and until another courier took it on. The right of substitution was therefore highly restricted, and the finding of worker status permissible.

In the news

“Fire and rehire”

There are a number of options for employers who want to change their employees’ terms and conditions of employment. Reaching agreement is obviously the optimal solution, but this is not always achievable in practice. Some employers may decide to dismiss employees from their “old” contracts, and offer re-engagement on the desired “new” terms. This has been labelled “fire and rehire”, and has come in for quite heavy criticism from some commentators who regard it as heavy-handed. There has been a backbench attempt to legislate to prevent the practice, but the Government has indicated it does not favour such an approach, and has blocked the legislation from progressing any further.

The option therefore remains available, but firms looking to implement contractual changes in this way would be wise to read Acas’ new guidance, which emphasises that it would be a last resort, and consensual changes are to be preferred wherever possible.

Surveillance and AI

Homeworking, which became the norm in many sectors during the pandemic, and has remained part of working life for many as lockdowns have eased. Although a more agile working model provides significant benefits for some, it has – anecdotally, at least – given rise to more pervasive monitoring of employee productivity. Quite apart from the data privacy implications of some technologies that can be used to keep track of employee activity, the All-Party Parliamentary Group on the Future of Work has issued a report focused on the mental health risks of enhanced surveillance. The report also looks at the risks associated with automated decision-making, and suggests employers should conduct an “algorithmic impact assessment” before adopting such technologies.

UK Government loosens Covid-19 travel restrictions but ends the ability for most EU nationals to enter the UK using a national ID card

On 4 October 2021, the UK Government removed most of the travel restrictions for travellers coming to the UK by abolishing the medium risk Amber List and reducing the number of countries on the high risk Red List.

This means that fewer travellers to the UK are subject to testing, self-isolation at home or mandatory quarantine in a hotel. In particular, proof of vaccination is now the most important factor for determining what action they will need to take pre and post-arrival.

We keep a note up to date with more details.

Also on 4 October 2021, the UK Government amended the rules so that EU nationals can no longer enter the UK using their national ID cards alone – they must have a valid passport.

The only exception to this rule is for those EU nationals who used their national ID cards for their EU Settlement Scheme applications or if they hold a Frontier Worker visa or S2 Healthcare Visitor visa. These travellers can continue to use their national ID cards.

Macfarlanes event

UK business immigration update webinar, 25 November 2021

Our immigration team are providing an update on the current options available to employers to hire staff in the UK, the surprisingly wide application of the visitor rules and proposed changes to the UK immigration system that should make things easier.

Particular areas of focus will be:

• an update of the latest UK business immigration changes;
• a high level overview of the work permit options available to employers;
• what business visitors can and cannot do without a work permit; and
• proposed changes to the immigration system in 2022.

This Zoom webinar will take place on Thursday 25 November from 9-10am. Please click on the following link to register.