With Christmas a distant memory and businesses focusing their energy on looking forward,  we thought it was a useful exercise to recap on the past year, both in terms of Court decisions and Governmental reforms and take have a look ahead, and see what to expect in 2018.

Gig economy/Taylor Review and Worker Status

2017: The term ‘gig economy’ encompasses a wide variety of atypical working forms. It typically refers to a labour market characterised by the prevalence of short-term contracts or freelance work as opposed to permanent jobs.  However, for employment law purposes, it is essential to determine whether an individual is working on a self-employed, employed or the middle ground of ‘worker’ basis which acquire some employment protections.

A report has been commission by the government (carried out by Lord Matthew Taylor) to report on employment practices in the modern economy. The final report was published on 11 July 2017 and highlighted a number of issues arising from the new working practices.

Looking ahead: We must wait to see if the Committee’s recommendations will be adopted into a new Bill which will provide much needed clarity on worker status and rights.

Worker Status Cases

2017: There have been several interesting and high profile cases considering worker status of those working in the gig economy.

In February, in Pimlico Plumbers v Smith the Court of Appeal held that a plumber was a worker not a self-employed contractor. The Court of Appeal in this case emphasised the fact that personal service lay at the heart of the relationship.

In Uber BV v Aslam and others the Employment Appeals Trinunal considered whether certain Uber drivers were workers for the purposes of various statutory employment rights such as holiday pay, national minimum wage and unlawful deductions from wages. The drivers needed to establish that there was a contract between the individual and the ‘employer’ under which the individual undertook to do work personally and the employer was not a client or customer of a business operated by the individual.  Worker status was achieved in this case.

Meanwhile, in Independent Workers Union of Great Britain v RooFoods Ltd t/a Deliveroo the riders sought to be declared as ‘workers’. In this case the courts concluded that the right to substitute another to perform the delivery service was genuine and they heard evidence of this being operated in practice, thus the individuals were genuinely self-employed and not workers

Other gig economy cases heard in 2017 include Dewhurst v CitySprint UK Ltd in which an employment tribunal held that a cycle courier was a worker. In this case the ET found that on the facts the substitution clause was not genuine despite its inclusion in the contract.

These cases make it clear that the Courts and Tribunals will take a thorough look at the relationship in practice and worker status is clearly reserved for individuals who are not working in businesses on their own account (such as genuine self-employed contractors) but for the middle ground staff where they may not be deemed employees but are clearly providing personal service and should therefore be afforded certain levels of employment protection.

Looking ahead: Uber are appealing the decision that Mr Aslam and others were workers for the purposes of various employment rights and this could have far reaching implications.

Holiday Pay

2017: The European Court of Justice (ECJ) has ruled in King v Sash Window Workshop Ltd that under Article 7(1) of the Working Time Directive (WTD) Mr King was entitled to claim back pay for untaken holiday for the period that he worked as a commission-only salesman, under which arrangement he received no salary and no sickness or holiday pay. Whilst Mr King took some unpaid holiday leave, he had not taken around 24 weeks of holiday between 1999 and 2012.

The ECJ ruled that employers must provide adequate facilities for workers to take paid annual leave and if an employer does not pay annual leave, the worker can claim that they have been prevented from exercising their right to take it. In this case, the leave is carried forward. The ECJ further ruled that there should be no limit on the period for which a worker could claim retrospective holiday pay.

Looking forward: This case will have significant consequences for employers, particularly in the gig economy. It is likely that now claimants will argue that the two year backstop for liability to pay holiday pay and the three-month rule will be ruled contrary to EU law because they prevent an adequate remedy being afforded for breach of workers’ rights.

General Data Protection Regulation

Looking back: The EU General Data Protection Regulation (GDPR) came into force in May 2016 and is directly effective in all member states from 25 May 2018. The UK’s Data Protection Bill will replace the Data Protection Act 1998, implementing the requirements of the GDPR. The Information Commissioner’s Office has consulted on draft guidance on consent, with final guidance due in December 2017.

The GDPR deals with the maintenance and processing of personal data but there is more emphasis on transparency so that individuals know what personal data that concerns them is being kept and used. There is also an emphasis on accountability so that data controllers should be able to demonstrate compliance.

Looking ahead: Employers will need to be ensuring that their systems and controls are compliant by this date to minimise the risk of claims (even class actions) against them.

Gender Pay Gap Reporting

2017: The Equality Act 2010 (Gender Pay Gap Regulations) Regulations 2017 came into force on 6 April 2017. The Regulations are accompanied by the Acas/GEO guidance which is not legally binding but it is unlikely that an employer will be criticised if it follows the guidance. It is pitched at a fairly high level and it is likely that the EHRC will have regard to the guidance when considering enforcement action. The Regulations require six calculations to be carried out, the results to be published on the employer’s website and a government website within 12 months.

Looking ahead: The first gender pay gap reports for private companies that fall within the scope of the Regulations (i.e. those with 250 plus staff) must be published by 4 April 2018. Employers are likely to use the optional narrative to explain any discrepancies and to set out what actions they intend to take to address any pay gaps.

What else to look out for in 2018

• The Immigration Bill 2017: This Bill will establish a new national policy on immigration and enable the government to repeal EU law on immigration

• Grandparental leave: legislation is expected in 2018 to extend shared parental leave and pay to working grandparents