Uber, employment rights and the gig economy

On Friday of last week, it was held in the employment tribunal that two Uber drivers were not self-employed on their own account (as Uber claim) but were in fact workers.

A quick summary if you are new to the subject…… there are essentially three broad ways in which you can be categorised when it comes to work.  You are self-employed and doing it all by yourself – and you therefore have no employment rights at all.  You are an employee; on the payroll and the recipient of a whole host of employment rights including the right not to be unfairly dismissed, or finally you are a worker – and you therefore have some rights such as, crucially, the right to be paid the minimum wage and the right to rest breaks under the Working Time Regulations.

This might all sound like a legal technicality, and it often is.  But an important one if you want to ensure you have any employment rights at all.

The judgement itself was no real surprise.  Whether someone is considered an employee, a worker or self-employed has been the subject of plenty of case law over the years, and the tests are fairly well established.  There are several factors considered when determining employment status, but control is a big factor in the decision.  To what extent is the individual concerned truly in control of their own work or instead in the control of the organisation?  Who controls the work given?  Can the work be turned down? Who issues the actual work instruction? How closely is it managed? Can you send someone else to do the work? Who do you ring if you are too sick to work? Do you turn up in your own clothes or do you have to wear a company uniform? What happens in practice rather than what is said to be done in a written agreement?

On this basis, and when you look at how Uber operates in practice, the decision that these two individuals are workers is a straightforward one.  They set the rates, they operate what is effectively a system of discipline and penalties, and there is a whole host of rules about how the drivers must operate.

Uber is often held up as an example of innovation.  Of the new digital world.  New ways of working.  It is business conference fodder.  But what of those working within it day to day?

There is much talk of the so-called ‘gig economy’.  The notion that more and more people are, for a whole range of reasons, not engaging in the Monday to Friday 9-5 full time employment thing, but instead are taking short term ‘gigs’.  Self-employment, day rate work, one piece of work at a time – whether that is one cab ride or a day of HR consultancy.  But of course the gig economy also includes those who are on zero-hours contracts.  Waiting for a call from the temp agency.  Wondering where the next few hours of work are coming from.

The gig economy comes complete with urban myths built in.  That those engaged within it are hanging out in hipster coffee shops, enjoying a better work life balance than the rest of us who are sticking safely to the regular pay cheque.

It is true that most people make a choice to be involved in the gig economy.  Sometimes that choice is about freedom, work life balance, being your own boss.  Flexibility.  And sometimes it is a choice between that or not working at all.

The legal challenge to the Uber model is far from over. Leave to appeal has already been granted and this one will run and run.   What we do know is that more challenges of the Uber nature are inevitable.  There are plenty of other organisations operating similar models of work. It is estimated that nearly 30% of people are now engaged, somehow, in the gig economy – a figure that is predicted to rise even higher.  Technology is increasingly allowing people and work to be put together in the moment.   Technology leads and the labour market follows.

There is a dark side to the gig economy.  Where those engaged within it have no power and no choice and even fewer employment rights.  As has ever been the case, the labour market is two-tiered.  There are the haves and the have nots – including the have nots of employment rights.  We should increasingly expect those engaged within it to challenge accordingly.

And as for Uber et al, as a consumer, I want to use the technology. I want the convenience. But I’d also like those for whom it provides work to have some employment rights too. Wouldn’t we all?

If it ain’t broke…

According to the press at the weekend, the government is intending to seek to renegotiate our agreements with the EU and return the right to set employment laws to the UK.  We want to opt-out of all of this restrictive, gold plated employment law.  Two of the Acts that were quoted as being in this particular firing line are those on working time and agency workers.  Let’s just look at those two Acts for a moment.

The Working Time Regulations have been with us since 1998.  If they were a person then they’d be taking driving lessons and trying to look old enough to get into pubs.  Enacted as essentially a piece of Health and Safety legislation, they are all about ensuring appropriate working hours and more importantly, sufficient rest.  They require that people take at least a day of every two weeks.  That people take a minimum amount of annual leave.  That people have proper rest between ending one shift and beginning another.  Terrible stuff that.

Then there is the Agency Workers Regulations.  A piece of legislation that requires temporary workers to receive the same pay, after a qualifying period, as someone doing the job on a permanent basis.  Fancy that!  People having the right to be paid the same as someone else doing the same job.

I am being deliberately flippant.  Whenever new legislation is proposed and enacted, there is always a crowd of cynics ready to cry that industry as we know it will cease.  Jobs will be lost.  Businesses will be deterred from taking on staff.  Entrepreneurs will shut up shop and go somewhere less regulated instead.  It happened when the Equal Pay Act was proposed.  It happened too with the WTR.  And with the National Minimum Wage.  But we are still standing, all the same.

Does anyone really believe that either of these pieces of legislation are damaging industry?  If so, where is the evidence?  And even if they are… then to a point, so what?  There needs to be balance between the needs of organisations and the needs of individuals and wider society.  I’d suggest that there are some things that are just as important as labour market flexibility.  Like fairness, wellbeing, paying people a living wage, equal treatment, health.

Long working hours contribute to ill-health, mistakes and accidents.  Low paid agency work contributes to our already problematic low pay economy, where workers end up relying on the State to make up the difference to a wage they can actually live on via tax credits.

Of course these aren’t the only EU employment directives.  There’s a few about equality too, among others.  Making sure that people aren’t discriminated against because of their age, their sexual orientation, their race, their disability.  Let’s hope no one thinks that we don’t need these, too.

 

 

A very long probation period

I’ve been in my current job two years today.  I’m guessing my team will have the flags out when I arrive at work this morning, by way of celebration.  Maybe.

Here in the UK, only now (or a week ago if you take my statutory notice into account) do I really have full employment rights.  Only now, do I have the ability to challenge my employer if they had unfairly dismissed me, or treated me so badly that I simply could not stay and so resigned.  Before today, unless I was being discriminated against for a protected characteristic such as gender, pregnancy or disability, or some important but not quite so often used stuff like trying to assert my statutory rights or being a member of a trade union, then I didn’t have that many rights at all.  My employer could, before today, have simply dismissed me.  Just because.

Up until an amendment by the current Government in 2012, I would only have needed a year of service with my employer to obtain these rights.  It is fair to say that this time period has moved around over the years, up, down and back up again, depending on the government of the day.

When it comes to employment contracts, most of them, wherever you work, have a probation period.  Personally, I loathe them. Nothing says ‘we aren’t really sure about you yet’ than a contractual clause that allows you to exit someone sharp left if you later decide their face doesn’t fit after all.  Too often, probationary periods are used to deal with the outcome of poor recruitment and selection procedures, or an unsatisfactory induction process.  The phrase makes me itch too. It makes it sound like beginning your new job is akin to committing a criminal offence.

But despite those personal bugbears, I recognise why companies feel that they need them.  With even the very best of recruitment and on-boarding efforts sometimes it just doesn’t work out for one or both of the parties.

Some people are surprised to learn that both legally and practically probation periods mean very little.  The ability to dismiss someone quickly and without much process (or indeed notice) in the first few months really just rests on the fact that, as long as you are not breaching those rights that exist from day one, then employees aren’t able to bring a claim for unfair dismissal, and that the law only provides for one week’s notice per year of employment (unless you happen to have contractually provided more).  Unfair dismissal law as it stands today therefore, is one big, fat two year probation period.

There is much talk at the moment, especially on the run up to the election, on employment issues to be tackled.  The political parties are confirming their plans.  Even the CIPD has launched its own Manifesto.  I am yet to see anyone mention the issue of qualifying service to bring an ET claim.

The difference between one year and two might not seem much, in the grand scheme of things.  I’m arguing that it is.

The increase from one years’ qualifying service to two was part of an overall aim to reduce the amount of employment tribunal claims going through the system.  It was estimated at the time that it might reduce claims by 2000 a year.

Only there is a problem with that number.  We have no idea in what circumstances those hypothetical 2000 employees left their employer.  It is tempting, or perhaps easy, to think that it was related to performance grounds.  That perhaps their employer has been saved from some terrible ‘red tape’ that would have impacted their organisation, or cost them unaffordable sums of money.  Or that these hypothetical employees were on the employment tribunal ‘gravy train’ and bringing vexatious claims.  © The Daily Mail.

But we just don’t know.  Maybe, just maybe, they are 2000 employees denied justice in a system that already makes it difficult for employees to challenge bad employers and bad employment practice.  And sadly, there are plenty of these around, whatever the legislation.

Here’s the thing. No employer needs two years to figure out whether someone is right for the job.  I find it hard to accept that many employers will be encouraged to hire more people because of the move from one year to two, that it has a positive economic benefit, or that it will save employers or the tribunal system vast amounts of money.  I do find it easy to believe however, that there will be managers and companies where they simply wanted rid of people and this makes it easy to do just that, in a labour market that already includes far too much low paid, vulnerable work.  I do find it easy to believe that there are conversations taking place along the lines of ‘they have less than two year’s service so I can do what I like’. I find it easy because a long time ago, I used to work at a company where managers that said just that, and often.  When an issue arose concerning an employee, the discussion would start with an enquiry about their length of service. And that would frame the response and approach.

If employers are worried about an employee bringing a claim for unfair dismissal, then instead of looking externally to the law to help protect you, might I suggest looking internally instead.  Because if you treat people well, follow good employment practice, train your managers to deal properly with their people stuff, and act reasonably, then you have little to fear from an unfair dismissal claim, whatever the length of service someone has.

Now.  Where are those flags?

When it starts being you

There is a quote in a Stephen King novel that goes something like this:

‘It’s like the old pie in the face routine.  It stops being funny when it starts being you’.

Over the last couple of years some key changes to employment legislation mean that employment rights ain’t what the used to be.

An increase from one year’s service to two in order to bring a claim for unfair dismissal.

The introduction of tribunal fees, reducing access to justice in a monumental way.

And now there are proposals to change the laws on industrial action, and in particular change the rules around balloting, with the result that it will be more difficult to call a strike. If the proposals go ahead, a simple majority vote will no longer suffice.  Instead there will need to be a minimum turnout of 40% of all of those eligible to vote before any action can be taken.

The question therefore occurs: do we have a huge problems with strikes in the UK?  I’m no @flipchartrick so there won’t be any detailed analysis, and neither will there be a @wonkypolicywonk style graph because I can’t work Excel.

But a glance at the data suggests…. Not so much.

A very quick review of the latest figures available from 2013 says that whilst working days lost due to labour disputes were up overall from the previous year, there were 114 actual stoppages in the UK.  Like, in total.

Of course there are big strikes from time to time and they tend to get equally big headlines. Some of these strikes do cause inconvenience. Especially when tube strikes take place on the same day as a CIPD conference.  But 114 stoppages suggests that British industry is hardly at a standstill because of the enemy within. So why the proposal?

Simple.  There is an election coming up.  So it is time for some tough talking headlines about tackling the usual suspects.  Benefits scroungers, addicts, people who should just get a job.  And now it is turn of the trade unions.  Only the thing with industrial action, and indeed many of the people against whom society’s ills are attributed, the reality behind the headlines is often very different.

According to an article over at the HR Magazine (citing research by Eversheds), 83% of businesses support the government proposals to reform strike laws. I’d like to ask those that said yes another question: when did you last have a strike, at your place? Or even the hint of one? And if you have or you might, would you rather rely on a statute that stops your employees from withholding their labour, or find a way to actually resolve the dispute and engage with the people that work for you?

There are a couple of things that I believe to be true. One of them, is that if you have to start pointing to a contract clause or quoting from statutes you are half way to losing the real argument – and creating a situation and a relationship challenge that only fixes positions and from which you may never recover.

I also believe that people act in the way that makes the most sense to them, that feels like the best option or choice in their particular circumstances.  So the more unusual or irrational the behaviour, the more important it is to try and understand why someone feels that this is the best thing for them.  I believe that there are better ways to solve workplace conflict than strikes.  But putting that aside for a moment, how many stoppages would the proposed change in the law actually prevent?  And what might the unintended consequences be too?

I know that misguided claims, vexatious claims, not founded in anything like employment law claims happen.  I’ve had my fair share over the years, just like most HR professionals.  I know that industrial action can be costly and disruptive for everyone involved.  But as HR professionals we can think about this stuff in different ways.  We can think about it narrowly, and consider the possible benefits to our own organisation. Fewer pesky claims to deal with, or less chance of industrial action, at our place.

Alternatively we can think about it more broadly.  Consider, in a labour market stuffed with low paid work, structural youth unemployment, zero hours contracts, a great big hole developing in the middle, a society in which you can live in poverty even when you are in full time employment, what we really want for employees and for workplaces.  Do we really want fewer employment rights, within this context?

Finally, you can think about it this way.  What, if the worst happened to you at work, would you want?  When I write a people policy, devise a new process, this is my starting point.  If I was sick, what would I want from my manager? If I was being made redundant, how would I want to be treated? If I was harassed at work, how I would I want to raise it?

We may never personally need to reply upon many of the valuable, hard won employment rights that we have.  But they protect us all the same.  So their slow erosion should concern all of us.  Because it stops being ok when it starts being you.

 

Twitter, employment law and common sense.

A case involving social media and employment has made its way to the Employment Appeals Tribunal.  The case involved an employee dismissed for his use of Twitter, and is interesting to HR for a few reasons.

Firstly, it contains some legal folk getting to grips with the terminology of the social world, which is always amusing.  Secondly, it contained this gem of a sentence, referring to the tweets in question.

In her witness statement, she added that they were offensive to other groups of people including dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the police and disabled people.  As you would expect, I disapprove of the latter.  But I fairly sure none of the others are protected characteristics so I feel it is acceptable to laugh.  Especially at the caravan drivers bit.

The facts of the case are these.  The claimant, Mr Laws, worked for the retail outlet Game.  His job was risk and loss prevention.  He set up a Twitter account and followed a number of Game’s stores, each of whom had their own Twitter account, in order to monitor their tweets and any potential inappropriate Twitter activity by employees.  Many of these stores followed him back in return.  At least one of the stores had tweeted from their account suggesting that their followers might also want to follow the claimant.  (It is unclear from the decision if the concept of #ff was explained in evidence).  However, despite the fact that there was a clear link to his work even though the account itself did not identify his employer, Mr Laws tweeted all manner of offensive tweets, including some delightful use of the C word.

Someone told Game, and Mr Laws was suspended, investigated and subsequently dismissed for gross misconduct.  Another interesting sentence in the decision is this one, referring to the date of Mr Law’s suspension.  By that time he had enlisted the assistance of his 14 year old son, and taken down his twitter feed.  What would we do without Generation Z, eh?

The case results in a tribunal hearing to determine if the dismissal was unfair.  The claimant doesn’t dispute he sent the tweets, but did argue that the sanction was too harsh.  The tribunal held that the employer hadn’t been reasonable in the decision to dismiss.  They took into account that the tweeting was done in his own time, that he was using his own device and that the activity wasn’t part of his job.  For me, these arguments just don’t stand up in the real, social world.  I tweet HR stuff.  My twitter bio doesn’t identify my employer.  But I know that I am followed by lots of people that work at the same place, and my tweets can be seen by our customers, potential employees, my boss, anyone.  And I am capable of bringing my employer into disrepute by what I post. Some might argue my One Direction tweets already do. Social blurs the boundaries between work stuff and not work stuff. My advice is simple.  Get two accounts or protect your tweets.  Then you can misbehave in private if you wish.

One other important point came up in the first hearing.  Game had no social media policy.  You do need one.  It doesn’t need to be the size of a brick.  But you do need to tell people what is okay and what is not.

Game appealed, and the decision that the action taken by Game fell outside the responses of a reasonable employer was overturned.   The useful bit of the case is that the tribunal were invited to lay down some general guidance on misuse of social media in the context of unfair dismissal claims.  They declined to do so.  In a break out of common sense, they said that the existing law was good enough, and that cases would always be very fact and context specific.  What employers need to do is what they already required to do – be reasonable in the circumstances. They also said that companies will want to find a balance between the employee’s right of freedom of expression and managing their reputational risk.  They finished with this: For us to lay down a criteria by way of guidance runs the risk of encouraging a tick box mentality that is inappropriate in unfair dismissal cases.  Awesome.

What seems to me to be clear from this case, is that the claimant was a bit of an idiot.  And we should not generate guidance, binding case law or policies, based on or for idiots.

You can think what you like.  You can say what you like.  You can pretty much tweet what you like, unless you are breaking the law with your 140 characters.  But a little common sense would tell you that tweeting whatever comes to mind, especially when it includes expletives, obscenities and insults (not to mention some very dubious spelling and grammar) is going to cause you an issue if that account is linked in any way to your job.  Common sense.  Something that should be exercised alongside your social media use at all times.  And if you don’t know how to do that, you could always ask a 14 year old.

Banter. The worst possible excuse?

I said I wasn’t going to write another football inspired post. But the events that unfolded last week in relation to text messages exchanged between former colleagues Malky Mackay and Iain Moody proves me unreliable.

If you missed the issue unfolding in the media, text messages sent by Mackay (while he was manager of Cardiff City) have been recovered. They include the following:

‘Fkn chinkys. Fk it. There’s enough dogs in Cardiff for us all to go around.’ (On the arrival of a player from South Korea)
‘He’s a gay snake’ (About another club’s official)
‘I hope she’s looking after your needs. I bet you’d love a bounce on her falsies’. (Referring to a female agent).

There are others, all of a similar casual discriminatory nature.

These were bad enough on their own. However, shortly after the messages were published by a newspaper, the League Manager’s Association issued a statement that referred to the messages as ‘letting off steam to a friend’ and ‘friendly text message banter’. They have since apologised for the statement, calling it ‘inappropriate’.

Banter is a word that strikes fear into the hearts of many a HR professional. And possibly glee into the hearts of the employment lawyer representing the other side.

Most HR folk have come across a banter defence in their time. That or one of its close cousins. Such as the ‘it was just a bit of fun’ excuse or the ‘it was a private conversation between two people’ alternative.

But scratch the surface of this particular attempt at behaviour justification, and you may well find some other, unpleasant implications underneath.

That the person complaining just doesn’t have a sense of humour.
That there was no harm intended so it doesn’t really matter.
That it’s not all that serious.

We all know that intention is neither here nor there when it comes to harassment or discrimination. That what matters is the impact of the behaviour or the language. It’s not just the purpose but the effect.

Here’s the thing. Banter is never, ever a defence or an excuse for discrimination, bullying or harassment. Not in the employment tribunal, not anywhere.

Saying that you are not a racist, sexist or homophobe, whether to the public via the media or just a panel of three in the ET, when your behaviour or language has already told its own story, will simply not cut it. You can be sure that the ET Judge has heard it all before, once or twice.

I don’t need to get the Equality Act out to check the wording in the clauses either. If you are ever tempted to use banter as an excuse, its dictionary definition is explanation enough. Good humoured. Playful conversation. Light hearted. Mildly teasing. The text messages above are not most reasonable people’s definition of good humour.

Instead of the banter justification, I would instead advocate using the complete pillock defence. As in admitting you have behaved like one. Followed by a grovelling apology.

You can’t undo harassment or bulling once it has taken place. But you can avoid pointless legal expense, or the implication that you just don’t care about equality, by leaving this particular word where it belong. With The Inbetweeners.

banter

Thank you to @the100 for allowing me to reproduce the above image.

Disciplining Employees Doesn’t Work (Shock)

Apparently, since the ban on term time holidays, there has been a sharp increase in the number of parents being fined for taking their children out of school. According to the government, fewer children are now missing school. I’m not actually sure the data that I have seen is showing that. It is showing lots of fines, which tells me parents are still happy to take their children out of school, only now they are paying for it.

I’d like to see the long term trend for this. Because if the research is correct, the government might not get the impact that they had hoped for. If they’d done their research, or even just read Freakonomics, they would know what happened when Israeli day care nurseries implemented charges for late pick-ups. The intention was to discourage parents from arriving late by introducing a small fine. What actually happened was late collections increased. Significantly. Why? It was now a simple bargain. A transaction. Before, it was about goodwill, not wanting to be the one who kept the teacher late, not wanting your child to be the last one waiting. Now there was a formal, monetary consequence, but one that the parents could obviously live with.

The moral of the story is this: sometimes you end up with unintended consequences. You might just get the exact opposite of what you set out for.

Take discipline at work. If you seek out a definition of its purpose, it will say something about correcting behaviour. Ensuring adherence to rules. Providing frameworks for dealing with people consistently and fairly.

Sanctions and incentives are supposed to influence behaviour. Drive it in one direction or another. It’s the old carrot and stick routine. And discipline is a big, blunt stick.

One of my early HR roles was almost entirely employee relations focused. Investigations, disciplinaries, grievances. That was all I did. Every single day, I would go onto the shop floor, wearing my trusty High Visibility vest, taking with me a stack of white envelopes, each one containing a summons to an investigation meeting or disciplinary hearing. We investigated everything. Disciplined for much. The managers would hand out the envelopes to the lucky recipients. The disciplinary process was designed to change their behaviour. And it did. It made them laugh at the disciplinary procedure. It turned it into first a joke, then a perverse badge of honour. Here comes HR, who has been a naughty boy today?

Unintended consequences. When it came to the nursery pick up, parents tried to be on time for many reasons. When the fine was introduced, it instead became a bargain, a financial transaction. One that could be accommodated. I can be late and pay a small fine. Or for the employees at my former company, I can breach discipline and get a white envelope, attend a meeting or two, and finally a warning that doesn’t actually mean very much at all.

Does the trusty disciplinary policy improve behaviour? Ensure adherence to rules?

Maybe. A little bit. But it does, then why?

The power of the disciplinary procedure rests within one ultimate sanction: dismissal. Only here’s the thing. Organisations do loads of them. And most of the time they don’t result in anything close to that. What they really result in is a letter than remains on your file for three months, six months, nine. Telling you not to do it again, or else…..

We might take further action, up to and including dismissal, in accordance with our Disciplinary Policy.

People behave well for a whole range of reasons. Some of it is tied up with their personality. Some of it is because of peer pressure, fear of consequences, moral imperitives, social incentives. Consider why more people don’t drink and drive. Is it because it is now considered morally unacceptable in our society, or is it because getting caught means certainly losing your licence?

People also behave badly at work for all sorts of reasons. And we need a better way of dealing with it. Because the unintended consequences of disciplinary procedures are negative impacts upon relationships, culture, behaviour. If the disciplinary process worked, you would only every discipline someone once. There would be no repeat behaviour. You would never see the same employee around that meeting table again, never go past the first written warning. But most HR folk will tell you, that isn’t our reality.

For all my criticisms, the truth is we are pretty much stuck with the legal framework. Legislation, ACAS codes, case law. Even if we accept that the traditional model of discipline doesn’t work, it is firmly embedded within the system. And the system requires us to have a policy, to follow it, to tick all of the procedural boxes. And there are consequences for failing to do so. It’s called the Employment Tribunal.

Our options for change are limited. The best thing that we can do in HR is skill our managers to have good, timely conversations instead, about performance, attitude, behaviour. Save your disciplinary process for when it really needed, for the most serious of issues. The best way to improve our approach to the disciplinary process, is use it less.