Employment Bulletin – July 2018

Cycle courier deemed to be a 'worker' entitled to holiday pay

A cycle courier with a taxi firm was a 'worker' rather than a self-employed contractor and so was entitled to holiday pay

That was the decision of the Employment Appeal Tribunal in a case involving Addison Lee Ltd and one of its riders, Mr C Gascoigne.

Addison provided a taxi and courier service. Mr Gascoigne's employment contract stated that he was "an independent contractor", that nothing in the contract rendered him "an employee, worker, agent or partner" of the company and that he should not hold himself out as such.

He provided his own bike and could choose when he worked. He was paid weekly with a piece rate for each job and a fixed rate for waiting time. He paid his own tax and national insurance and was registered with HMRC as self-employed.

The company deducted an "admin fee" and a payment for insurance cover. Each courier had a company ID and an allocated call sign, and was supplied with a radio, a palmtop computer and GPS tracker.

When available for work, couriers would contact the controller by radio or phone and log on to the allocation system. The company's position was that Mr Gascoigne worked under a zero hours contract and that it had no obligation to offer him work and there was no obligation on him to accept any such offer.

The Employment Tribunal at the initial hearing referred to the contractual provision that if Mr Gascoigne was logged on to the system he was "deemed to be available and willing to provide Services".

It found that he was working under the company's direction and not "running his own business" and was subject to a "classic wage/work bargain". It held that the contract did not reflect the reality of the parties' legal relationship.

The Employment Appeal Tribunal has upheld that decision.

HMRC targets firms failing to pay minimum wage rates

HMRC is continuing to clamp down on firms that fail to pay the National Minimum Wage and is urging underpaid workers to come forward and complain.

The latest figures show that the number of workers getting the money they're owed has doubled over the last year.

In 2017 to 2018, HMRC investigators identified £15.6m in pay owed to more than a record 200,000 of the UK's lowest paid workers. That was up from £10.9m for more than 98,000 workers in the previous 12 months.

HMRC launched its online complaints service in January 2017, and this has contributed to the 132% increase in the number of complaints received over the last year.

The figures are published as the government launches its annual advertising campaign designed to encourage workers to take action if they are not receiving the National Living Wage or the National Minimum Wage. The online campaign, which runs over the summer, urges underpaid workers to complain by completing an HMRC online form.

Industries most complained about to HMRC include restaurants, bars, hotels and hairdressing.

Business Minister Andrew Griffiths said: "Employers abusing the system and paying under the legal minimum are breaking the law. Short changing workers is a red line for this government and employers who cross the line will be identified by HMRC and forced to pay back every penny."

Failure to pay the minimum rates can result in fines of 200% of the arrears, public naming and, for the worst offences, criminal prosecution.

From 1 April 2018, the government's National Living Wage rate increased by 33p to £7.83 per hour for those aged 25 and over.

The National Minimum Wage increased:

• by 33p to £7.38 per hour for those aged 21 to 24
• by 30p to £5.90 per hour for those aged 18 to 20
• by 15p to £4.20 per hour for those aged 16 to 17
• by 20p to £3.70 per hour for apprentices.

Police officer wins claim over pay for shared parental leave

A police force discriminated against a male officer by paying him less while he was on shared parental leave than a woman would have received while on maternity leave.

That was the decision of the Employment Appeal Tribunal in a case involving Leicestershire Constabulary and one of its officers.

The officer's claim relied on the 'provision, criterion or practice' (PCP) applied by the chief constable of paying only the statutory rate of pay for those taking shared parental leave, whereas women on maternity leave were entitled to full pay for the equivalent period.

The Employment Tribunal rejected his contention that women on maternity leave were valid comparators for men on shared parental leave and so dismissed his claim of direct discrimination.

It then applied that finding in rejecting his indirect discrimination claim. It further rejected that claim on the basis that the PCP did not put men at a disadvantage compared with women.

The Employment Appeal Tribunal (EAT) upheld the decision on direct discrimination but said that the tribunal had been mistaken in using that as a reason to reject the claim of indirect discrimination.

The law required the tribunal to identify the alleged disadvantage and to undertake a comparative exercise to decide whether the PCP put men at a disadvantage compared with women in no materially different circumstances.

The officer was justified in claiming that the provision of offering only statutory pay for shared parental leave disadvantaged men as they did not have the option, available to women who had given birth, of taking maternity leave at a higher rate of pay.

The (EAT) said the tribunal had erred in holding that the PCP did not put men at a disadvantage.

Meat company prevents employee using confidential information

A meat company has been granted an injunction preventing a former employee misusing its confidential information about customers and product prices.

The court heard that the company supplied fresh meat to commercial catering customers. One of its employees resigned after working as a sales executive for two-and-a-half years.

During his employment, he had direct contact with customers, taking and processing orders and seeking new clients.

The company alleged that before resigning, he had emailed a list of contact details of customers to his personal email account. It also alleged that he had been misappropriating documents, dealing with their customers on the side and taking cash payments, which he kept.

He was alleged to have impersonated a Food Safety Agency officer to denigrate the company to customers, and to have withheld funds owed to the company.

The judge said the list of customers and prices was confidential information and the employee had owed a duty of trust to the company. There was prima facie evidence of misappropriation and misuse of information to the company's detriment. The employee might have had grounds to complain about his employment, but that was not an excuse to misuse information.

The court held that there was a serious issued to be tried at a full hearing. Until that hearing took place, it granted an injunction ordering the employee to return all the confidential material and preventing him from misusing it.