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] A Plea for Business Secretary Greg Clark to resign over the Government’s ‘Good Work’ response to the Taylor Review
]
A Plea for Business
Secretary Greg Clark to
resign over the
Government’s ‘Good Work’
response to the Taylor
Review
2
Never attempt to win by force what can be won by deception.
-Niccolò Michiavelli, The Prince
3
23 February, 2018
Dear Business Secretary Greg Clark,
1. I am writing you, in my capacity as General Secretary of the Independent Workers’ Union
of Great Britain (IWGB), to ask for your resignation. Before we get into the heart of what
I want to discuss, it is perhaps worth setting the scene.
2. On 13 July, 2016, newly anointed Prime Minister Theresa May stood outside 10 Downing
Street and promised the world to Britain’s low paid workers. Of particular note for
present purposes she said1:
But the mission to make Britain a country that works for everyone means
more than fighting these injustices. If you’re from an ordinary working
class family, life is much harder than many people in Westminster realise.
You have a job but you don’t always have job security. You have your own
home, but you worry about paying a mortgage. You can just about manage
but you worry about the cost of living and getting your kids into a good
school.
If you’re one of those families, if you’re just managing, I want to address
you directly.
I know you’re working around the clock, I know you’re doing your best, and
I know that sometimes life can be a struggle. The government I lead will
be driven not by the interests of the privileged few, but by yours.
To address the legitimate and likely concern that this statement was nothing more than
a bit of hot air, on 1 October, 2016 the Prime Minister commissioned the Independent
Review of Employment Practices in the Modern Economy, to focus primarily on the
“implications of new forms of work, driven by digital platforms, for employee rights and
responsibilities, employer freedoms and obligations, and our existing regulatory
framework surrounding employment”2, to be led by the one and only Matthew Taylor
(more on which below).
1For the full statement, see: https://www.gov.uk/government/speeches/statement-from-the-new-prime-minister-theresa-may 2 https://www.gov.uk/government/groups/employment-practices-in-the-modern-economy
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3. In the Conservative Party manifesto for the 2017 election your party again promised to
protect workers in the so-called “gig economy” and gave a near blanket endorsement to
the Taylor Review (even though the Review had not yet made its recommendations),
saying3:
We will make sure that people working in the ‘gig’ economy are properly
protected. Last October, the government commissioned Matthew Taylor,
the chief executive of the Royal Society of Arts, to review the changing
labour market. We await his final report but a new Conservative
government will act to ensure that the interests of employees on
traditional contracts, the self-employed and those people working in the
'gig' economy are all properly protected.
4. On 11 July, 2017, the Taylor Review was published4. To say it was a disappointment would
be the understatement of the century. A few days after publication the IWGB responded
with an open letter to Matthew Taylor, entitled Dead on Arrival, setting out the problems
with the review5 (more on which below).
5. On 20 November, 2017 the Business, Energy and Industrial Strategy (BEIS) and
Department of Work and Pensions (DWP) select committees jointly published a report
and draft legislation in response to the Taylor Review6. The IWGB released a response on
the same day7 (more on which below).
6. On 7 February, 2018 the Government finally showed signs of life by issuing a press release
announcing its “response” to the Taylor Review8. On the same day I wrote you a letter
expressing our disappointment with this response9. At the time the only information we
3 Conservative Party Manifesto, p16. For full manifesto, see: https://www.conservatives.com/manifesto 4 For details, see: https://www.gov.uk/government/publications/good-work-the-taylor-review-of-modern-working-practices 5For Dead on Arrival, see here: https://iwgbunion.files.wordpress.com/2017/07/iwgb-response-to-taylor-review1.pdf. For a shorter synopsis of the Review’s problems, see: https://www.theguardian.com/commentisfree/2017/jul/18/taylor-review-gig-economy-workers. To hear these issues debated, see the podcast debate between myself and Matthew Taylor: https://soundcloud.com/unworkable/unworkable-episode-3-reviewing-the-taylor-review. 6 For more on which, see: https://www.parliament.uk/business/committees/committees-a-z/commons-select/work-and-pensions-committee/news-parliament-2017/future-of-work-report-17-19/ 7 See: https://iwgbunion.files.wordpress.com/2017/11/iwgb-response-to-dwp-beis-report.pdf 8https://www.gov.uk/government/news/millions-to-benefit-from-enhanced-rights-as-government-responds-to-taylor-review-of-modern-working-practices 9 To read the letter see: https://iwgbunion.files.wordpress.com/2018/02/iwgb-letter-to-greg-clarke.pdf
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had regarding your response was the press release. Later in the day however, after all
the media outlets had written up stories based on the press release, the Government
issued its actual response (and related material), contained in the following documents:
a. Good Work: A Response to the Taylor Review of Modern Working Practices10 (80
pages);
b. The experiences of individuals in the gig economy11 (108 pages);
c. THE CHARACTERISTICS OF THOSE IN THE GIG ECONOMY: BEIS Research Paper:
2018 no. 212 (47 pages);
d. GOOD WORK: THE TAYLOR REVIEW OF MODERN WORKING PRACTICES:
Consultation on agency workers recommendations13 (33 pages);
e. GOOD WORK: THE TAYLOR REVIEW OF MODERN WORKING PRACTICES:
Consultation on enforcement of employment rights recommendations14 (40
pages);
f. GOOD WORK: THE TAYLOR REVIEW OF MODERN WORKING PRACTICES:
Consultation on measures to increase transparency in the UK labour market15 (48
pages);
g. EMPLOYMENT STATUS CONSULTATION16 (55 pages); and
10https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/679767/180206_BEIS_Good_Work_Report__Accessible_A4_.pdf 11 This document contains the findings of research commissioned by the Department for Business, Energy and Industrial Strategy (BEIS), with funding from the Department for Education (DfE), and conducted by the Institute for Employment Studies (IES). The research was led by Andrea Broughton and the report authors were Andrea Broughton, Rosie Gloster, Rosa Marvell, Martha Green, Hamal Langley, and Alex Martin. The report can be found here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/679987/171107_The_experiences_of_those_in_the_gig_economy.pdf 12This paper was authored by Katriina Lepanjuuri, Robert Wishart, and Peter Cornick and can be found here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/679436/The_characteristics_of_those_in_the_gig_economy.pdf 13https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/679831/2018-02-06_Agencyworkerconsultationdoc_Final.pdf. However, as in Dead on Arrival, due to the fact that we do not represent many agency workers and as such do not have as much experience in this area, we will leave the commenting on this topic to others. 14https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/679792/2018-01-17_Taylor_Employment_Tribunal_Enforcement_Condoc_v7.1_FINAL__1849_.pdf 15https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/679849/Consultation_-_Increasing_Transparency_-_070218__3_.pdf 16https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/679853/FINAL_-_Employment_Status_consultation_-_FOR_UPLOADING_and_PRINTING.pdf
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h. Good Work: Government response to the Matthew Taylor Review of Modern
Working Practices: Communications Toolkit17 (11 pages).
7. Having now had the opportunity to read through the full 422 pages of the Government’s
entire response to the Taylor Review, I must apologise for the inaccuracy of my earlier
letter to you. For although I characterised the Government’s response as “big on
grandiose claims, light on substance”, I do think that’s giving you too much credit. Indeed,
I’d suggest that to have the Government response widely characterised as a “damp squib”
is quite an achievement. The remainder of this letter sets out a fuller appraisal of your
response to the Taylor Review.
BACKGROUND18
The IWGB
8. The IWGB is a new and small trade union which represents predominantly low paid
migrant workers, workers in the so-called “gig economy”, and others in atypical work.
Our membership includes cleaners, security guards, catering staff, including some who
are on 0 hours contracts, foster care workers, couriers, food delivery workers, and private
hire drivers.
9. With the exception of a small minority of directly employed university employees, nearly
all of our membership are in some form of “atypical work” and/or on low pay. From
outsourced cleaners to the foster care workers with no employment status, to Uber
drivers whose rights are not being enforced, no group of people is in greater need of
change than a representative cross-section of IWGB membership.
10. Over the past few years the IWGB has been campaigning for better pay and rights for
couriers and food delivery workers19. We have also been waging test cases to ensure
17 This is Government guidance sent to “stakeholders” on helping them to reach “the people who the Government’s response may impact, and creating a dialogue across the nation.” 18 This section is largely based on pp1-13 of Dead on Arrival (https://iwgbunion.files.wordpress.com/2017/07/iwgb-response-to-taylor-review1.pdf), but updated to reflect the considerable developments since the time of publication of that document. 19 For example we have won pay rises at courier firms CitySprint, eCourier, and Mach 1 (now Absolutely).
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these workers, and private hire drivers, enjoy their legal entitlement to basic employment
rights20.
The Issues
11. For present purposes there are three main categories under which individuals can
perform work: employee, independent contractor who carries on a profession or
business undertaking on their own account and contracts with clients or customers, and
limb b worker. It is important to be very clear on what the differences are as the
delineation between these three categories goes to the heart of the debate around how
to address the wide-scale deprivation of employment rights in the so-called “gig
economy”. Of particular importance:
a. An employee is what it sounds like: someone who works under the control of an
employer and has an on-going understanding with that employer about when they
are expected to work and what that work is supposed to look like. An employee
is on PAYE; the employer makes tax deductions from their pay and pays national
insurance contributions in respect of their employment. An employee has the
maximum number of employment rights.
b. An independent contractor who is in business on their own account, referred to
here by the short-hand of independent contractor21 is self-employed, has clients
or customers, and is genuinely running their own affairs. They do their own taxes
and for the most part do not have employment rights as they have no employer.
20 For example we have recently beaten (either via tribunal decision or settlement) the following companies on employment status: The Doctors Laboratory, CitySprint, eCourier, Excel, Uber (in the Employment Appeal Tribunal), and Addison Lee. 21 Although technically a limb b worker could be considered an “independent contractor” in the sense that they provide work pursuant to a contract for services rather than a contract of service, for ease of reference we shall use the term “independent contractor” as a shorthand for those self-employed people who truly are independent providers of services and who are not limb b workers. We use this terminology in the same way as Sir Terrence Etherton MR in Pimlico Plumbers Limited & Anor v Gary Smith [2017] EWCA Civ 51:
3. The case puts a spotlight on a business model under which operatives are intended to appear to clients of the business as working for the business, but at the same time the business itself seeks to maintain that, as between itself and its operatives, there is a legal relationship of client or customer and independent contractor rather than employer and employee or worker.
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c. A limb b worker, usually referred to as simply a “worker”22 for short, is also self-
employed, however they are self-employed people who carry out their work as
part of someone else’s business rather than as part of their own business. For this
reason they are entitled to some, but not all, of the employment rights that
employees have. Importantly, workers are covered by trade union rights,
minimum wage, paid holidays, automatic employer pension contributions, and
protection from discrimination. They do not however have a right to statutory
sick pay, statutory maternity/paternity pay, or a right to claim unfair dismissal. As
workers are self-employed, they do their own taxes and the “employer”23 does
not make national insurance contributions on their behalf.
12. One can see that the above descriptions are somewhat different from the normal
portrayal in the media of the three categories being “employee, worker, and self-
employed”. As “worker” is a sub-category of self-employment, it is patently incorrect to
present “worker” and “self-employed” as two distinct and mutually exclusive categories.
This is incredibly important not just because of the tax implications, but also because of
how many who work in the so-called “gig economy” self-identify. They often (but not
always) set their own hours, they have more flexibility and autonomy than the average
employee, and they rightly benefit from more favourable tax arrangements which
account for the fact that unlike an employee (who doesn’t have to rent their desk),
workers often have to invest in the tools of their trade, e.g. motorbikes, protective
equipment, cars, etc.
13. One of the most striking features of the debate around workers’ rights in the so-called
“gig economy” is the degree to which the media, the Government, some employment
lawyers, thinktanks and others consistently inaccurately characterise the current state of
the law, in particular on the issue of whether workers are a category of self-employment.
This is all the more striking given the absolute clarity of the current position, as set out in
paras 24, 25, and 31 of the judgment of the (then) Deputy President of the Supreme Court,
22 The reference to “limb b” comes from the fact that employment rights statutes tend to define “worker” as encompassing two different sub-groups: limb a workers which are employees, and limb b workers which are the type described above. As “worker” is normally used as a shorthand for “limb b worker”, this letter will also refer to limb b workers simply as workers for the sake of simplicity. 23 Although somewhat counterintuitive to refer to someone who engages a self-employed person as an “employer”- this is nevertheless the term often used to cover those businesses who engage limb b workers, in recognition of the fact that the limb b worker is carrying out their work as part of the “employer’s” business and not their own. As such this letter will also refer to those who engage limb b workers as “employers”.
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Lady Hale, in one of the leading employment status cases before the Supreme Court:
Clyde & Co LLP & Anor v Bates van Winklehof [2014] UKSC 3224:
24. First, the natural and ordinary meaning of “employed by” is employed
under a contract of service. Our law draws a clear distinction between
those who are so employed and those who are self-employed but enter
into contracts to perform work or services for others.
25. Second, within the latter class, the law now draws a distinction
between two different kinds of self-employed people. One kind are people
who carry on a profession or a business undertaking on their own account
and enter into contracts with clients or customers to provide work or
services for them. The arbitrators in Hashwani v Jivraj (London Court of
International Arbitration intervening) [2011] UKSC 40, [2011] 1 WLR 1872
were people of that kind. The other kind are self-employed people who
provide their services as part of a profession or business undertaking
carried on by some-one else. The general medical practitioner in Hospital
Medical Group Ltd v Westwood [2012] EWCA Civ 1005; [2013] ICR 415,
who also provided his services as a hair restoration surgeon to a company
offering hair restoration services to the public, was a person of that kind
and thus a “worker” within the meaning of section 230(3)(b) of the 1996
Act. ...
31. As already seen, employment law distinguishes between three types
of people: those employed under a contract of employment; those self-
employed people who are in business on their own account and undertake
work for their clients or customers; and an intermediate class of workers
who are self- employed but do not fall within the second class25.
24 https://www.supremecourt.uk/cases/docs/uksc-2012-0229-judgment.pdf 25 It is true that various of the key employment rights statutes have slightly different definitions of “worker” which is not particularly helpful. For example, whilst the Working Time Regulations 1998 and the National Minimum Wage Act 1998 have a virtually identical definition, the Trade Union and Labour Relations (Consolidation) Act 1992 has a slightly different definition. Similarly, the Equality Act 2010 has an extended definition of “employee” which in this case includes workers. The Transfer of Undertakings (Protection of Employment) Regulations 2006 also has an extended definition of employee which appears to include workers. The tediousness of the matter is further
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14. Much has been made of the fact that employment law recognises three tiers whilst tax
law only recognises the two categories of “employee” and “self-employed”. The
suggestion by commentators, including Matthew Taylor and the Government (more on
which below), is that this issue leads to confusion and is inherently problematic. That is
because the underlying premise of this contention is that limb b workers are not self-
employed but a distinct category which cannot be characterised as either employees or
self-employed. If this premise were true then the situation would of course be confusing
and the commentators would be correct to express concern. Indeed, a diagram of the
commentators’ understanding might look like Diagram1, below.
Diagram 1
Employee Worker Self-employed
Rights
Employee Self-employed
Tax
increased when one considers the terminology of EU law- upon which much of UK employment law is based- in which “worker” has an autonomous meaning (which would normally include the UK definition of worker) and in which the term “employment relationship” would normally encompass the connection between a UK worker and his/her “employer”. Additionally, the European Convention of Human Rights, which is relevant to some aspects of UK employment law (in particular regarding discrimination and trade union rights), does not refer to workers or employees but rather to people with such terms as “everyone” or “no one”. However, notwithstanding all of this tedious detail, it is widely accepted that UK employment law recognises three main categories, as succinctly summed up in the passages from Lady Hale cited above.
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15. However, given that workers are self-employed, the commentators’ understanding is
incorrect. The definition of employee in both tax law and employment law has the same
source: the common law on contracts of service26. Whilst tax law and employment law
might be applied slightly differently in some situations due to the fact that a body of case
law for tax purposes builds up in the Upper Tribunal (Tax and Chancery Chamber) whilst
a body of case law for employment law purposes builds up in the Employment Appeal
Tribunal (EAT) before both tribunals eventually feed into the Court of Appeal in England
and Wales, Court of Appeal in Northern Ireland, or Court of Session in Scotland27, the
general rule is that someone who works pursuant to a contract of service will be entitled
to the maximum suite of employment rights, have the tax liabilities of an employee, be
put on PAYE, and have national insurance contributions made on their behalf by their
employer28. Under both employment law and tax law, so far as the so-called “gig
26 For example, the Income Tax (Earnings and Pensions) Act 2003 sets out the definition of employment in s4: 4 “Employment” for the purposes of the employment income Parts
(1) In the employment income Parts “employment” includes in particular- a. Any employment under a contract of service, b. Any employment under a contract of apprenticeship, and c. Any employment in the service of the Crown.
(2) In those Parts “employed”, “employee” and “employer” have corresponding meanings. Similarly, the Social Security Contributions and Benefits Act 1992 sets out the scope of the categories of earners at s2: 2 Categories of earners
(1) In this Part of this Act and Parts II to V below- a. “employed earner” means a person who is gainfully employed in Great Britain
either under a contract of service, or in an office (including elective office) with […earnings]; and
b. “self-employed earner” means a person who is gainfully employed in Great Britain otherwise than in employed earner’s employment (whether or not he is also employed in such employment).
Ironically the Government’s EMPLOYMENT STATUS CONSULTATION document sets out these definitions before going on to ignore the implication (more on which below). 27 All three of these courts then feed into the UK Supreme Court. 28 Of course in tax law there are exceptions to the general rule, set out in both primary and secondary legislation. But as it is the general rule which the response implies is incompatible with employment law, it is to the general rule which these comments are addressed.
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economy” is concerned29, someone who does not work pursuant to a contract of service
will be self-employed30. This means they will not be on PAYE and their employer will not
be liable for national insurance contributions on their behalf. Employment law then
further divides this category of self-employed people into two sub-sets: independent
contractors and workers. Workers will be entitled to some employment rights (as above).
Therefore Diagram 2, below, would be more accurate.
Diagram 2
Employee Self-employed
Worker Independent contractor
Rights
Tax
16. Couriers, food delivery workers, and private hire drivers do not usually claim to be
employees. The issue tends to be whether they are independent contractors or workers.
The answer to the question does not affect their self-employed status, but it does of
course have a major impact on their entitlement to employment rights. Unsurprisingly,
the companies say these people are independent contractors and often compel the
individuals to sign documents agreeing to that, and we say the individuals in question are
workers. In some even more absurd examples, the companies say the main contractual
relationship is between the customer and the individual working, not between the
company and said individual.
29 I.e. putting aside office holders, apprenticeships, etc. 30 For employment law, see the passage of Lady Hale quoted above.
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17. Following the defining Supreme Court case of Autoclenz Limited v Belcher & Ors [2011]
UKSC 4131, the law is clear that tribunals and courts need to look at the actual working
relationship between the parties; the signed “contract” will not necessarily be
determinative. Because of the incredible extent of asymmetrical bargaining power
between a putative employer and a putative worker or employee, the fact that an
individual signs a document stating they are an independent contractor does not
necessarily mean they are one. In this regard, every employment lawyer who has argued
a case around employment status is familiar with the well-known passage from Elias J in
the Employment Appeal Tribunal case of Consistent Group Ltd v Kalwak [2007] IRLR 560,
cited at para 25 of the Autoclenz judgment:
57. The concern to which tribunals must be alive is that armies of lawyers
will simply place substitution clauses, or clauses denying any obligation to
accept or provide work in employment contracts, as a matter of form, even
where such terms do not begin to reflect the real relationship.
18. “Gig economy” employers have lawyered up and riddled their contracts with bogus
clauses. Luckily for the workers however, the tribunals have largely seen through this. In
the Uber (Employment Tribunal and Employment Appeal Tribunal), CitySprint, Excel,
Addison Lee (courier and private hire) cases the judges have held that the individuals in
question were workers and not independent contractors. Despite the fantastical
narrative of these employers that the law is so muddled and confused they couldn’t
possibly know where they stand, the scathing prose of some of these judgments leaves
little doubt about the supposed lack of clarity in the law. For example, in the Uber
employment tribunal, Employment Judge Snelson stated32:
87. In the first place, we have been struck by the remarkable lengths to
which Uber has gone in order to compel agreement with its (perhaps we
should say its lawyers’) description of itself and with its analysis of the legal
relationships between the two companies, the drivers and the passengers.
Any organisation (a) running an enterprise at the heart of which is the
function of carrying people in motor cars from where they are to where
31 https://www.supremecourt.uk/cases/docs/uksc-2009-0198-judgment.pdf 32 https://www.judiciary.gov.uk/wp-content/uploads/2016/10/aslam-and-farrar-v-uber-reasons-20161028.pdf
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they want to be and (b) operating in part through a company discharging
the regulated responsibilities of a PHV operator, but (c) requiring drivers
and passengers to agree, as a matter of contract, that it does not provide
transportation services (through UBV or ULL), and (d) resorting in its
documentation to fictions, twisted language and even brand new
terminology, merits, we think, a degree of skepticism. Reflecting on the
Respondents’ general case, and on the grimly loyal evidence of Ms Bertram
in particular, we cannot help being reminded of Queen Gertrude’s most
celebrated line:
The lady doth protest too much, methinks.
88. Second, our skepticism is not diminished when we are reminded of the
many things said and written in the name of Uber in unguarded moments,
which reinforce the Claimants’ simple case that the organisation runs a
transportation business and employs the drivers to that end. We have
given some examples in our primary findings above. We are not at all
persuaded by Ms Bertram’s ambitious attempts to dismiss these as mere
sloppiness of language.
89. Third, it is, in our opinion, unreal to deny that Uber is in business as a
supplier of transportation services. Simple common sense argues to the
contrary. The observations under our first point above are repeated.
Moreover, the Respondents’ case here is, we think, incompatible with the
agreed fact that Uber markets a ‘product range.’ One might ask: Whose
product range is it if not Uber’s? The ‘products’ speak for themselves: they
are a variety of driving services. Mr Aslam does not offer such a range.
Nor does Mr Farrar, or any other solo driver. The marketing self-evidently
is not done for the benefit of any individual driver. Equally self-evidently,
it is done to promote Uber’s name and ‘sell’ its transportation services. In
recent proceedings under the title of Douglas O’Connor-v-Uber
Technologies Inc the North California District Court resoundingly rejected
the company’s assertion that it was a technology company and not in the
business of providing transportation services. The judgment included this:
Uber does not simply sell software; it sells rides. Uber is
no more a “technology company” than Yellow Cab is a
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“technology company” because it uses CB radios to
dispatch taxi cabs.
We respectfully agree.
90. Fourth, it seems to us that the Respondents’ general case and the
written terms on which they rely do not correspond with the practical
reality. The notion that Uber in London is a mosaic of 30,000 small
businesses linked by a common ‘platform’ is to our minds faintly ridiculous.
In each case, the ‘business’ consists of a man with a car seeking to make a
living by driving it. Ms Bertram spoke of Uber assisting the drivers to
“grow” their businesses, but no driver is in a position to do anything of the
kind, unless growing his business simply means spending more hours at
the wheel. Nor can Uber’s function sensibly be characterised as supplying
drivers with “leads”. That suggests that the driver is put into contact with
a possible passenger with whom he has the opportunity to negotiate and
strike a bargain. But drivers do not and cannot negotiate with passengers
(except to agree a reduction of the fare set by Uber). They are offered and
accept trips strictly on Uber’s terms.
And this section of the judgment carries on for another six points.
19. Rather than tweak their arguments in light of the bruising employment tribunal decision,
on appeal Uber doubled down on its “intermediary” argument, i.e. it persisted in arguing
that Uber was nothing more than an agent, acting in the best interest of the drivers, by
putting them in touch with customers, with whom the drivers entered into a direct
contractual relationship for the supply of transportation services. Lest one be concerned
that the tribunal judge got a little carried away, it’s worth noting that Uber fared no better
in the Employment Appeal Tribunal. HHJ Eady QC upheld the Employment Tribunal’s
decision in its entirety, saying at para 11633:
… I am satisfied the ET did not err either in its approach or in its conclusions
when rejecting the contention that the contract was between driver and
passenger and that ULL was simply the agent in this relationship, providing
33Uber B.V & Ors v Aslam & Ors UKEAT/0056/17/DA. See: https://assets.publishing.service.gov.uk/media/5a046b06e5274a0ee5a1f171/Uber_B.V._and_Others_v_Mr_Y_Aslam_and_Others_UKEAT_0056_17_DA.pdf
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its services as such to the drivers. Having rejected that characterisation of
the relevant relationships, on its findings as to the factual reality of the
situation, the ET was entitled to conclude there was a contract between
ULL and the drivers whereby the drivers personally undertook work for ULL
as part of its business of providing transportation services to passengers in
the London area.
20. With regard to Uber’s ridiculous claim that it is the drivers and not Uber that sells
transportation services it is not just the UK tribunals but also the EU legal system that has
assessed the matter. For example, in the case before the CJEU of Associación Profesional
Elite Taxi v Uber Systems Spain SL (Case C-434/15)34, Advocate General Szpunar said in his
opinion35:
43. In its written observations, Uber claims that it simply matches supply
(the supply of urban transport) to demand. I think, however, that this is
an unduly narrow view of its role. Uber actually does much more than
match supply to demand: It created the supply itself. It also lays down
rules concerning the essential characteristics of the supply and organises
how it works.
…
51. Thus, Uber exerts control over all the relevant aspects of an urban
transport service: over the price, obviously, but also over the minimum
safety conditions by means of prior requirements concerning drivers and
vehicles, over the accessibility of the transport supply by encouraging
drivers to work when and where demand is high, over the conduct of
drivers by means of the ratings system and, lastly, over possible exclusion
from the platform. The other aspects are, in my opinion, of secondary
importance from the perspective of an average user of urban transport
services and do not influence his economic choices. Uber therefore
controls the economically significant aspects of the transport service
offered through its platform.
34http://curia.europa.eu/juris/document/document.jsf?text=&docid=190593&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1130645 35 Endnotes have been omitted from the quote.
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52. While this control is not exercised in the context of a traditional
employer-employee relationship, one should not be fooled by
appearances. Indirect control such as that exercised by Uber, based on
financial incentives and decentralised passenger-led ratings, with a scale
effect, makes it possible to manage in a way that is just as – if not more –
effective than management based on formal orders given by an employer
to his employees and direct control over the carrying out of such orders.
53. The foregoing leads me to conclude that Uber’s activity comprises a
single supply of transport in a vehicle located and booked by means of the
smartphone application and that this service is provided, from an
economic standpoint, by Uber or on its behalf. The service is also
presented to users, and perceived by them, in that way. When users
decide to use Uber’s services, they are looking for a transport service
offering certain functions and a particular standard of quality. Such
functions and transport quality are ensured by Uber.
…
61. Uber is therefore not a mere intermediary between drivers willing to
offer transport services occasionally and passengers in search of such
services. On the contrary, Uber is a genuine organiser and operator of
urban transport services in the cities where it has a presence. While it is
true, as Uber states in its observations in the case, that its concept is
innovative, that innovation nonetheless pertains to the field of urban
transport.
21. The decision of the CJEU (Grand Chamber) in that case36 followed the opinion of the AG,
going on to hold that Uber needed to be regulated as a service in the field of transport
rather than as an information society service.
22. In the CitySprint37 tribunal, Employment Judge Wade also pulled no punches on
CitySprint’s attempt to get around the law, saying:
36http://curia.europa.eu/juris/document/document.jsf?text=&docid=198047&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1130645 37 http://www.egos.co.uk/ir35_cases/Dewhurst_v_City_Sprint_2016.pdf
18
29.1 The substitution clause 3.5 in the Tender is contorted and self-
destructive. It grapples with the conflict between the desire to have such
a clause and the reality that the CitySprint brand cannot be put at risk by
the use of arms-length substitutes. The effect is so prescriptive that only
couriers who are already on circuit would in practice be able to substitute.
…
54. The respondent’s opening outline says:
“The respondent operates courier services around the UK.
Self-employed van drivers, motorcycle riders and cycle
couriers all make their services available to CitySprint, on
relevantly the same terms.”
By contrast, when Ms Dewhurst was questioned she said:
“I work hard for them so that they can maintain their
relationship with their clients.”
55. Not only is the phrase “make their services available” as opposed to
“work for” a mouthful, it is also window dressing and I find Ms Dewhurst’s
description to be more accurate. Her phrase expresses not only that she
provided her services personally but that CitySprint was not her customer
but her employer.
…
64. The very title of the document “Confirmation of Tender to supply
Courier Services to CitySprint” arouses the suspicion that the contract may
have been generated by the “army of lawyers” described by Mr Justice
Elias in Kalwak.
…
78. I have no doubt that the claimant was working not for herself with
CitySprint as her customer but on the respondent’s behalf. Couriers out
on the road on their own bicycle enjoy a certain amount of freedom
(sometimes this is the freedom to get very cold and, at worst, have an
accident for which they receive no sick pay) but the network of
19
connections back to CitySprint is very sturdy. The claimant and her cycle
courier colleagues are:
78.1 Expected the work when they say they will
78.2 Directed throughout the time that they are on circuit
78.3 Instructed to “smile with your greeting” and wear the uniform
78.4 Told what to do if the parcel cannot be delivered as instructed
78.5 Told when they will be paid and paid according to the
respondent’s formula after it has made deductions
78.6 Told that they are part of the “family” who the respondent
describes as “our couriers” on many occasions.
23. The conclusion of EJ Pearl, in the employment tribunal case determining the employment
status of the Addison Lee private hire drivers38, was similarly strong:
53. … We consider that the drivers were not in any realistic sense
contracting with Addison Lee so that the status of the latter was as clients
or customers of a business. The contractual documents demonstrate, as
much as anything else, the inequality of bargaining power between the
respective parties. The drivers were in a subordinate position, which is not
surprising, but they cannot sensibly be viewed as contracting with a client
of their driving business. The facts all point the other way and Mr Burns’s
submission, in our view, defies evidential gravity.
24. Unfortunately for Addison Lee, the company did not do any better in the Employment
Tribunal case over its couriers’ employment status39. EJ Wade again made the point that
the company knew exactly what it was doing:
44. The respondent’s recruitment material on its website says:
“we are proud of our couriers – we’d love you to be part of that”
It does not say:
38 Case numbers 2208029/2016, 2208030/2016, and 2208031/2016. 39 Case number 2200436/2016.
20
“We want to find couriers who are independent and work
on an ad hoc basis – if you do account work you to be a self-
employed sub-contractor and for non-account work we will
be your agent so you carry the risk.”
Not only is this confusing and wordy, it is not the way the business ran, or
could run, as the respondent well knew. This is why it employed its “armies
of lawyers” to do the best job possible to ensure that the claimant and his
colleagues did not have “limb b” worker status. Sadly, they even resorted
to clause 15.3.2, see paragraph 13 above, which was designed to frighten
him off from litigating and suggests that they knew the risk of portraying
the claimant as self-employed.
45. Website verbiage can be dismissed as advertising puff but when it
differs so starkly from the contractual wording, alarm bells must ring. I find
the true relationship to be closer to the wording of the website in that:
a. The respondent and the claimant worked together in a team and
under a contract whereby the claimant was expected to carry out
work for the respondent, under its direction, when logged into the
system.
b. He performed the work personally, and not because Addison Lee
was his client or customer.
Applying Autoclenz, I do not consider that the contract of October 2015
portrays the relationship correctly and it is just one source of many to be
taken into account.
…
57. I therefore conclude that the claimant was a “limb b” worker. This was
a working arrangement which did not lend itself to the interpretation
which the armies of lawyers tried to promote. The claimant was part of a
homogeneous fleet and a homogeneous operation which promoted
Addison Lee to customers and looked after its own. There is nothing wrong
or bad about that, it simply does not fit with the employment status for
which the respondent contends.
21
25. Sometimes the employers even find it difficult to maintain their farcical narrative among
their own staff, who are supposed to promulgate that narrative with the couriers and
drivers. EJ Wade recounts a cute little anecdote in her judgment in the CitySprint case:
50. There is a recording of a conversation between Mr Katona and a
controller called Ian. Mr Katona had a problem with an item which he had
collected but could not deliver at the end of the day because the premises
were shut. As trained in the induction, he telephoned the controller for
instructions. When he asked whether he could do what he wanted with
the item the controller replied (and I quote from the respondent’s
recording):
“no, I’m afraid so, I’m afraid you can’t really - I mean that’s
all bullshit- as we all know isn’t it… That you self employs
[sic] can do exactly what you want – I mean if that was the
case we wouldn’t have a business would we, really?”
The controller subsequently tried to explain his comments away in an
email but did not come here to give evidence.
26. Similarly, Kevin Valentine, the head of Addison Lee’s courier department and only witness
in the courier employment status employment tribunal, admitted on a secret recording
of him blacklisting one of our members (Andrew Boxer)40 that he knew Addison Lee was
going to lose its appeal of the case:
Valentine: What I am saying is be careful, please be careful where you are
going. Because your union is going to win. But what happens afterwards,
where that goes, where the HMRC goes, where everything else goes. All
your taxation, all your freedom, everything else goes, be very careful.
Boxer: the point about being worker status…
Valentine: you can be worker status, we are preparing for it
Boxer: …is that it allows that freedom
Valentine: yes of course it does
40 https://www.youtube.com/watch?v=ICqO2qi2Dfs&feature=youtu.be
22
…
Valentine: I’ll probably see you in a year’s time when you come here as a
worker
27. So just to be clear about what’s happening here, even the head of Addison Lee’s courier
department believes Addison Lee couriers are workers! So for pundits, policy makers,
and some sections of the press to carry on as if the main problem is one of confusion
(more on which below), either constitutes willful obfuscation or alternatively betrays a
deep misunderstanding of the problem at hand.
28. In addition to the emphatic judgments cited above, in other cases we have run, the
companies admitted to their behaviour. For example, shortly before our case against
eCourier was due to be heard at the employment tribunal the company agreed to a
settlement including the wording:
The Respondent admits that during the Claimant’s engagement by the
Respondent he was engaged as a worker, as defined in section 230(3)(b)
of the Employment Rights Act 1996, which for the avoidance of doubt
includes an entitlement to holiday pay as claimed by the Claimant. …
29. Similarly, in our case against The Doctors Laboratory (TDL) over the employment status
of their couriers they initially responded to the claim by admitting the couriers were in
fact limb b workers. Then, shortly before the preliminary employment tribunal was due
to take place, they agreed to acknowledge that some of the claimants were in fact
employees41.
30. Undoubtedly the legal advice both of these companies received was that the law was
clear: if the matters proceeded to tribunal on these points the companies would lose.
31. You’ll have to forgive the extent to which we have quoted judgments above, however it
is absolutely crucial that one understands what the problem is before being able to
suggest a solution. Based on the Government’s response to the Review I am not sure you
have properly understood the problem. So let’s sum it up: the fundamental problem of
employment rights in the so-called “gig economy” is the lack of enforcement of existing
41For more detail, see: https://www.theguardian.com/law/2018/feb/07/couriers-carrying-blood-for-nhs-win-full-employment-rights
23
employment law. Despite the oft-repeated cliché that UK employment law is archaic and
has failed to keep up with the times42, the recent tribunal and court cases have
demonstrated the exact opposite. The existence of the third category of “worker”, the
ability and willingness of the tribunals and courts to look beyond the written terms of the
purported contract, and the emphatic nature with which the judges have declared their
findings all lead to the conclusion that the law did not have to be stretched or
reconfigured to cover workers in the so-called “gig economy”.
32. Indeed the only recent high profile “gig economy” tribunal decision to not come down on
the side of the workers is the case of Deliveroo before the Central Arbitration Committee
(CAC). However there are strong grounds to contend that that case was incorrectly
decided (the IWGB has since applied for a judicial review of the decision). Ironically, even
though they held the riders were not workers, the CAC in their decision went on to decide
that a majority of the riders in the bargaining unit would nonetheless be likely to want a
collective bargaining arrangement where the IWGB could negotiate their pay, hours, and
holidays with Deliveroo.
33. Given that the fundamental problem is the failure of employers to obey the law, a proper
diagnosis would ask why this occurs. The answer is not rocket science:
a. There is virtually no government enforcement of employment law, and what little
enforcement there is tends to be incredibly half-hearted and ineffective.
b. There are almost no consequences whatsoever for employers unlawfully
classifying their workers as independent contractors. The implication of the
CitySprint judgment was that the company had been unlawfully depriving its
couriers of employment rights to which they were legally entitled for years. The
consequence? They had to pay two days’ holiday to the claimant. No fine, no
sanction, no incentive to obey the law.
c. Employment tribunal fees, introduced in July 2013, resulted in a drop in tribunal
claims of nearly 70% due to the strong deterrence effect of having to pay
substantial sums to assert one’s rights. These were not abolished until July 2017
when the Supreme Court ruled the fee regime to be unlawful.
In sum, when there is virtually no government enforcement of existing law, virtually no
consequences for unlawful behaviour, and when claimants find it almost impossible to
42For example see the ridiculous YouTube video in which Deliveroo CEO and Founder Will Shu says he is going to “campaign the government” to allow him to give sick pay to riders as currently employment law doesn’t allow this: https://www.youtube.com/watch?feature=youtu.be&v=JRzC-JllvYA&app=desktop.
24
assert their rights in tribunal, it is entirely unsurprising that there is such widespread
unlawful behaviour.
The Solution
34. In light of the above, and in recognition of the fact that a growing proportion of the
workforce appear to be falling into the category of worker rather than employee, the
IWGB has consistently called for three simple proposals which we believe would go a long
way to securing proper employment rights for people in the so-called “gig economy”:
a. Introduce proper government enforcement of employment law. This means a
government agency or department (or preferably Ministry of Labour, as proposed
by the Institute of Employment Rights43 and adopted in the Labour Party
manifesto44) which can inspect workplaces, build cases against employers,
prosecute them, and fine them for unlawful behaviour.
b. Eliminate employment tribunal fees to make it easier for claimants to assert their
rights, and introduce fines as a result of employers using bogus employment
status.
c. Increase the employment rights associated with worker status so that workers
enjoy rights which currently only accrue to employees.
35. Luckily, although no thanks to the Government, part of the above has been accomplished
via the Supreme Court decision (in which the IWGB was an intervener), to rule the tribunal
fees to be unlawful45.
36. The above three suggestions should not be interpreted as the total solution for
employment rights in the so-called “gig economy”, and much less so for the UK labour
market overall. Obvious improvements above and beyond our three key proposals
include equalising the minimum wage with the real living wage, increasing statutory sick
pay, repealing the Trade Union Act 2016, and much more. For a comprehensive set of
recommendations on how to improve employment rights and working lives see the
Institute of Employment Rights’ (IER) Manifesto for Labour Law46, much of which was
incorporated into the Labour Party manifesto in the last election.
43 http://www.ier.org.uk/ 44 http://www.labour.org.uk/page/-/Images/manifesto-2017/Labour%20Manifesto%202017.pdf 45 For the full judgment, see: https://www.supremecourt.uk/cases/docs/uksc-2015-0233-judgment.pdf 46 http://www.ier.org.uk/manifesto
25
37. Our suggestions are rather an extremely modest and reasonable starting point which we
believe would dramatically improve things for workers in the so-called “gig economy”.
The fact that the Economist- which like Mathew Taylor and this Government- deeply
cherishes the UK’s flexible labour market- endorses half of our proposals47 just goes to
show indeed how moderate they are.
38. As we work our way through the Government’s response to the Taylor Review, we will
look to see how the response stacks up to our commonsense proposals. We will also ask
the most important question of this exercise: “as a result of the Government’s response,
are workers in the so-called “gig economy” fundamentally better off today than they were
last month?”
THE TAYLOR REVIEW48
The Process49
39. In addition to Matthew Taylor, the Review panel consisted of:
a. Paul Broadbent, Chief Executive of the (then) Gangmasters Licensing Authority
(GLA);
b. Greg Marsh, Founder and Formerly Chair and Chief Executive of onefinestay; and
c. Diane Nicol (Employment Lawyer), Partner at Pinsent Masons law firm.
This was a panel heavily biased in favour of employers. Diane Nicol worked at a firm who
marketed itself as being pro-employer50, and Ms. Nicol herself was marketed by the firm
47https://www.economist.com/news/britain/21725036-many-labour-market-problems-would-be-solved-simply-enforcing-existing-law-self-employed-or?fsrc=scn/tw/te/bl/ed/selfemployedoremployeebritainwrestleswiththegigeconomy 48 This section summarises our response to the Review in Dead on Arrival. In the interest of brevity this section is necessarily restricted to key points, and excludes the extensive analysis and anecdotes contained in our full response. Our commentary on the Taylor Review is largely silent on those issues which do not (or have not traditionally) directly affect(ed) IWGB membership. We will leave the commenting on these matters to those more qualified to do so. These areas include proposals on agency workers, enforcement of tribunal awards, genuine independent contractors, the “hidden economy”, apprenticeships, and internships. 15 of Taylor’s 53 recommendations fall into this “leaving the analysis to those more qualified” category. 49 For more on this, see Dead on Arrival, pp13-21. 50 For example, see: https://www.chambersandpartners.com/11822/23/editorial/1/1, https://www.pinsentmasons.com/en/expertise/services/employment/, and https://www.pinsentmasons.com/en/expertise/services/employment/industrial-relations/.
26
as being pro employer51. She had also published material suggesting it should be easier
for Government to block strikes52. Greg Marsh on the other hand was a former Deliveroo
investor and only divested from the company two months into the review53. This was a
clear conflict of interest which was made worse by the Review’s secrecy on the matter.
This pro employer representation was not compensated for by any trade union or worker
members of the panel54.
40. The Review also struggled to conduct a proper, fair and balanced consultation. Seemingly
more concerned with good press coverage and with putting on events for the general
public55 than with getting into the nitty-gritty of the detail, the superficiality of the
Review’s analysis is unsurprising. This dynamic can be clearly seen with the Review’s keen
interest in having someone from IWGB speak at one of their events and simultaneous
adamant refusal of Matthew Taylor to find an hour in his diary to work through the issues
in detail with the IWGB in a 1-2-1 setting56.
41. The Review also adopted an unhelpful narrative57. The “gig economy” employers’
favouritve narrative is to portray flexibility and employment rights as mutually exclusive
trade-offs. For example, following the tribunal stating that Uber drivers were not
independent contractors, Jo Bertram, the company’s regional manager in the UK, said:
“The overwhelming majority of drivers who use the Uber app want to keep the freedom
and flexibility of being able to drive when and where they want.”58 Similarly, in response
to an IWGB campaign over pay for Deliveroo riders in Brighton, a spokesman for the
company said: “The IWGB does not accurately represent the majority of our riders who
overwhelmingly support the flexibility and good pay which comes with being self-
51 For example, see: https://www.pinsentmasons.com/en/people/partnersconsultants/diane-nicol/ 52 See: https://www.out-law.com/en/articles/2017/january/does-the-current-rail-dispute-justify-yet-more-reform-to-strike-legislation/ 53 See https://www.sbs.ox.ac.uk/faculty-research/entrepreneurship-centre/events/confessions-entrepreneur-greg-marsh, https://techcrunch.com/2014/06/26/deliveroo/ and https://www.ft.com/content/b9248756-8f51-3fd4-9016-67c651da67e0?mhq5j=e2. 54 For more detail on the problem of the biased panel, see Dead on Arrival, pp13-17. 55 For example, the invitation to the Review’s first London event pitched the gathering as an opportunity for participants to “network”. See: https://www.eventbrite.com/e/modern-employment-review-london-tickets-31152223138?utm_campaign=new_attendee&utm_medium=email&utm_source=eb_email&utm_term=event_name 56 For more detail on the consultation, see Dead on Arrival pp17-19. 57 For more detail on this point, see Dead on Arrival pp19-21 and 27-28. 58 https://www.theguardian.com/technology/2016/oct/28/uber-uk-tribunal-self-employed-status
27
employed.”59 And so the media reporting, in an admirable aim of fairly presenting both
sides of the debate, therefore often presents flexibility and employment rights as a trade-
off. This is the so-called “gig economy”’s false dichotomy60.
42. There is nothing, either logically or legally, to suggest that “workers” can’t work flexibly.
In fact, all of the evidence suggests the opposite. The tribunal judgments have looked at
the reality of the working relationship between workers and employers, including a
detailed review of the amount of flexibility allowed, and nonetheless concluded that the
CitySprint courier and the Uber drivers were workers. In the Uber case it was
acknowledged that the drivers turned the app on and off when they liked – it is hard to
imagine a more flexible working arrangement – and they were still found to be workers.
Unfortunately, however, throughout the consultation the Review appears to have bought
into this false dichotomy, as can be seen by numerous press communications and
interviews61.
43. In sum, the Review’s panel members were biased and/or unethically conflicted, the panel
had no worker or trade union representation, Mr. Taylor refused to meet with the IWGB
despite our direct stake in, and experience with, the issue at hand, the Review incorrectly
portrayed the current law, and often ran the employers’ preferred narratives.
Style over Substance62
44. The defining feature of the Taylor Review is just how little of it contains any substance.
Examples of this include:
a. From the Forward63, the report:
…issues a call for us as a country to sign up to the ambition of all
work being good work. From time to time people have asked me
59http://www.theargus.co.uk/news/local/brighton_hove/15156740.Delivery_riders_hopping_mad_over_low_wages/ 60 For more on which, see https://www.theguardian.com/commentisfree/2017/mar/22/rights-gig-economy-self-employed-worker. 61 For example, see: http://www.belfasttelegraph.co.uk/business/news/government-review-into-gig-economy-employment-rights-branded-feeble-35912359.html and http://www.telegraph.co.uk/business/2017/07/10/matthew-taylor-defends-zero-hours-deals-paves-way-employment/. 62 For more detail on this topic, see Dead on Arrival pp22-27. 63 Page 5
28
what as Chair of the Review I would see as success. While I would
be proud to see our recommendations enacted and our strategic
proposals fully debated, more than anything I hope this Review will
come to be seen to have won the argument that good work for all
should be a national priority.
b. From Chapter 264:
But we also think now is the time to organise our national
framework around an explicit commitment to good work for all. As
we have talked to people about good work – employees,
employers, academics, advocacy organisations and interested
citizens from all walks of life – we have been impressed by their
enthusiasm for this ambition.
45. Similarly, some of the recommendations are so wishy-washy, it would be entirely feasible
for Government to “implement” them without any discernible impact on workers, and
certainly without any concrete improvement in workers’ lives. It is important to note,
however, that some of these proposals could also be feasibly implemented in a way which
does have a positive impact. We did not therefore necessarily disagree with them. There
just wasn’t enough substance or detail for us to really venture much of an opinion either
way. From Chapter 765 we see a classic example of one of these recommendations:
Government should work with Investors in People, Acas, Trade
Unions and others with extensive expertise in this area to
promote further the development of better employee
engagement and workforce relations, especially in sectors with
significant levels of casual employment.
In this “too fluffy for analysis” category we included 17 of the Review’s 53
recommendations.
64 Page 7 65 Page 53
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The Law66
46. Incredibly, given that the Review’s task was to among other things recommend changes
to employment law, the Review consistently inaccurately portrayed the current state of
the law. In particular, the Review repeatedly presented the three employment categories
as “employee”, “worker”, and “self-employed”67, which, as explained above, is patently
incorrect. This error is not some minor technicality raised in a display of pedantry. Rather,
this goes to the heart of the employment status issue and has implications for how
workers identify, taxes, and the essence of having a third category. Given that whilst
judges and employers certainly know the law, the general public and media tend to be
confused about the different employment statuses, it is to say the very least incredibly
unhelpful that the Review added to the confusion.
47. The profound misunderstanding of the law also goes to the Review’s diagnosis of the
problem. Taylor has stated he believes the main motivating factor for businesses
misclassifying people as independent contractors rather than workers is to avoid
employer national insurance contributions liability68. The Review similarly asserts that
employers accrue national insurance contribution liability for workers and not just
employees. However, with the exception of industry-specific carve outs, this is patently
incorrect, as seen in the discussion of tax law above.
The Recommendations69
48. In addition to the 15 recommendations alluded to above which we are leaving for others
more qualified to comment on, and the 17 recommendations which fell into the category
of “too fluffy for analysis”, there remained a further 21 recommendations. These can be
further divided into the following categories: “would do no harm but also won’t achieve
a whole lot” (12 recommendations), “mixed bag- has good and bad elements” (4
66 For more on this topic, see Dead on Arrival p20 and pp28-30. 67 For example, see: http://www.telegraph.co.uk/business/2017/06/12/matthew-taylor-outlines-plan-balance-flexibility-fairness-world/, https://www.gov.uk/government/news/taylor-review-on-modern-employment-practices-launches, http://www.telegraph.co.uk/business/2017/07/10/matthew-taylor-defends-zero-hours-deals-paves-way-employment/, http://www.telegraph.co.uk/business/2017/07/10/matthew-taylor-defends-zero-hours-deals-paves-way-employment/, and https://www.theguardian.com/commentisfree/2016/nov/30/rethink-work-taxes-review-modern-employment-gig-economy. 68 See the podcast debate referenced above. 69 For a detailed analysis of the recommendations see Dead on Arrival pp30-50.
30
recommendations), “bad” (2 recommendations), “potential to be good but not enough
detail to know” (2 recommendations), and “wholeheartedly endorse in current form” (1
recommendation). For the full break down, see Appendix A.
49. With regard to our three modest yet essential proposals of proper government
enforcement with punitive fines to deter bad behaviour, elimination of employment
tribunal fees, and increasing rights for the worker category, the Review failed miserably.
The Review’s modest proposal for limited increased government enforcement contained
no substance whatsoever or any evidence of any thought having been put into how it
might be effective, the Review did not call for the total elimination of tribunal fees, and
its proposal to change rights for workers was extremely limited and/or undetailed and in
the case of minimum wage would make things worse for many. Even if every single one
of the Review’s recommendations was implemented, we believe very little would change
for workers in the so-called “gig economy”.
50. Just how egregious was the failure to recommend the total elimination of employment
tribunal fees was made clear by the ruling of the Supreme Court on the matter on 26 July
201770, just weeks after the Review was released. Indeed, Lord Reed stated at para 91 of
the judgment:
… The fall in the number of claims has in any event been so sharp, so
substantial, and so sustained as to warrant the conclusion that a significant
number of people who would otherwise have brought claims have found
the fees to be unaffordable.
And with the greatest of respect to Lord Reed, one doesn’t have to be a Supreme Court
justice to have figured that out. It was blindingly obvious to anyone who cared to look.
51. Lord Reed again points out at para 68 what Taylor should have realised as a matter of
common sense:
… Courts exist in order to ensure that the laws made by Parliament, and
the common law created by the courts themselves, are applied and
enforced. That role includes ensuring that the executive branch of
government carries out its functions in accordance with the law. In order
for the courts to perform that role, people must in principle have
unimpeded access to them. Without such access, laws are liable to
70 For the full judgment, see: https://www.supremecourt.uk/cases/docs/uksc-2015-0233-judgment.pdf.
31
become a dead letter, the work done by Parliament may be rendered
nugatory, and the democratic election of Members of Parliament may
become a meaningless charade. …
52. In sum, the Taylor Review misdiagnosed the problem, misunderstood the law, didn’t go
nearly far enough in its recommendations, and included some ideas which would make
matters worse. Indeed the depth of analysis in the Review was at best on par with what
could be found on the back of a box of cereal71. In addition to being a massive let down
for the hundreds of thousands of workers whose livelihoods could have been improved
by the Review, the Review will also go down as one of the biggest embodiments of
intellectual laziness in the history of modern government reviews.
THE BEIS/DWP SELECT COMMITTEES72
53. While the Government was letting the Taylor Review gather dust on the shelf, the BEIS
and DWP select committees went about gathering evidence and putting together a
response to the Review. This culminated in a joint report by the two committees, made
public on 20 November, 201773. On the same day the IWGB put out a response to this
report. Some of the report was positive, some of it we believe will not make much
difference, and some of it was concerning.
54. Out of the report’s 11 recommendations we dealt with 10 in our response74. Out of these
ten, I would classify one as “mixed bag- has good and bad elements”, four as “would do
no harm but also won’t achieve a whole lot”, one as “potential to be good but not enough
detail to know”, two as a “step in the right direction”, and two as “wholeheartedly
endorse in current form.” For the full list of recommendations we assess and their IWGB
classifications, see Appendix B.
55. This report, although containing a number of Taylor’s useless ideas and one of his bad
ones, overall represented a step in the right direction. Most importantly, it increased the
emphasis on government enforcement and recommended killing the Taylor proposal on
minimum wage. Taylor’s minimum wage proposal was that as long as “gig economy”
71 Though the cereal box people probably would have been more careful about not making sloppy mistakes. 72 The following section is based largely on the IWGB response to the joint report. For the full response, see: https://iwgbunion.files.wordpress.com/2017/11/iwgb-response-to-dwp-beis-report.pdf 73 For the full report, see: https://publications.parliament.uk/pa/cm201719/cmselect/cmworpen/352/352.pdf 74 One, dealing with agency workers, we will leave to others for reasons cited above.
32
companies can demonstrate that the average worker working averagely hard cleared
120% of minimum wage they would not be liable to ensure that any individual worker
actually earned the minimum wage. The proposal would be a massive step back and rip
minimum wage protection out of the hands of many who most need it (more on which
below). The BEIS/DWP report was right to recommend it never see the light of day.
THE GOVERNMENT SURVEYS AND CONSULTATIONS
56. Before coming on to the full government response, let’s first deal with the two surveys
commissioned by BEIS on the “gig economy” and one of the consultation documents. I
must say I am struck by the fact that out of the 422 pages constituting the Government
response to the Taylor Review, the overwhelming majority is the product of, or the
designs for, Government research into “Modern Working Practices” and their regulation.
On the one hand this is a step forward in that these documents present a slightly more
serious engagement with the issues than the Taylor Review did (a low bar admittedly).
However, if the plan all along was for BEIS to be the workhorse and Taylor the show pony,
then why on earth did the entire country waste ten months paying attention to every
twist and turn of the Taylor Review?
THE CHARACTERISTICS OF THOSE IN THE GIG ECONOMY: BEIS RESEARCH PAPER: 2018 no. 2
57. This survey does not really contribute much to the debate. However, as the Government
released it as part of its response to the Taylor Review, one can only assume that the
Government believes it to have some value. Therefore, just a few brief comments are in
order.
58. First, the entirety of the results are tainted by the working definition of the “gig economy”
adopted by the researchers:
The gig economy involves the exchange of labour for money between
individuals or companies via digital platforms that actively facilitate
matching between providers and customers, on a short-term and
payment-by-task basis.
On this definition, the following people would be excluded:
33
a. Same day delivery couriers (who in general don’t use a “digital platform”)75;
b. Deliveroo riders who work on a shift basis.
Also, the definition itself displays a wholesale adoption of the “gig economy” business
narrative. Uber doesn’t “actively facilitate matching between providers and customers”
any more than Starbucks actively facilitates matching between barristas and coffee
consumers. Drivers work for Uber and Uber sells transportation services to customers.
For a refresher of the relevant principles see the extensive discussion on this topic above.
59. Despite the supposed purpose of this survey being to tell us about the characteristics of
those in the so-called “gig economy”, page 10 tells us why we should be careful about
drawing any conclusions from the results (!):
However, the test on statistical significance is based on the assumption
that a sample is a simple random sample with no design effects. It is
therefore important to note that the findings from the YouGov Omnibus
survey are based on a non-probability quota sample which does not give
all individuals in the population equal chances of being selected. While the
results are weighted to be representative of the whole population and are
a good reflection of it, drawing conclusions from the statistical tests should
be done with caution and awareness of these limitations. In particular,
while an omnibus sample is nationally representative based on specified
demographic variables, they may not be representative in other
characteristics or attitudes. Online surveys using access panels are drawn
from self-selecting samples which may differ attitudinally or behaviorally
to the population as a whole.
60. The survey authors also conveyed a similar lack of understanding of relevant
employment law as Taylor himself. For example, at page 25, in the section entitled “Gig
economy income”, the authors state:
While the national minimum wage legislation does not apply to those self-
employed, such as most of those involved in the gig economy, it offers an
interesting comparison to those in traditional forms of employment….
75 Yet somehow 42% of respondents to the survey were couriers (see page 5).
34
However, this is patently incorrect. Minimum wage entitlement accrues to employees
and limb b workers, the latter being a subset of the self-employed. And in case the
authors have not been following the news for the past few years, nearly every “gig
economy” individual who brings a case before the employment tribunal is declared a
worker.
The experiences of individuals in the gig economy
61. This survey uses the same definition, and as such suffers from the same problems, as the
previous one.
62. The extremely small sample size of 150 workers was rendered even less useful by
containing a plurality (56) of workers classed as “professional/creative/high-skilled work”
and only 19 performing “physical low-skilled work”. Although some sympathy should be
had for researchers grappling with the complexity of assigning a precise definition to a
concept such as “the gig economy”, one also needs to be cautious about attaching any
usefulness to generalisations which might be drawn from data about pay and working
conditions covering everyone from Uber drivers to business consultants. Indeed, if one
wants to have an idea of working conditions on the Tesco shop floor one would normally
exclude the semi-structured interviews with the CEO and HR director. It seems the BEIS
department itself shares some of my skepticism- at least so far as anti-employer content
is concerned- about the usefulness of this survey. For example, in the Consultation on
agency workers document, para 45 says:
… Research published alongside this consultation highlighted some of the
problems of pay between assignments contracts, but was based on a small
sample that was not randomly selected.
63. This survey again adopted the preferred “gig economy” business narrative, in particular
by parroting this idea that the business is nothing more than an intermediary between
worker and customer. For example, at page 46 the authors state:
Online platforms used by respondents typically facilitated the transfer of
payments from the customer to the gig worker via an escrow system.
Although this meant that the platform often took a percentage of the fee
charged, respondents generally viewed this as a positive service and a key
35
benefit, as they did not have to chase clients for payment, and felt more
assured that they would receive payment for the work they had done. The
platform would also use this to cover any costs incurred by handling these
payments.
The above may be an accurate portrayal of those independent contractors genuinely in
business on their own account, using websites to link them to their customers. However
it is absurd to include those survey respondents in the same survey which also contains
Uber driver respondents, as the models- notwithstanding Uber’s protests to the contrary-
could not be more different.
64. Of course, the point of drawing attention to the problematic narrative is not for the
purpose of mere pedantry, but rather because in a survey consisting entirely of qualitative
research in the form of semi-structured interviews, the narrative of the researchers, and
their understanding of the issues, will necessarily inform the results.
65. The authors of this survey also appear to be dreadfully ill-informed with regard to
employment law. Considering that an entire chapter of the document is on employment
rights, and the survey purports to contribute to the understanding of how workers in the
so-called “gig economy” value employment rights, this is quite problematic. For example,
at page 69 the authors state:
Respondents largely thought that they were self-employed casual workers.
They mostly felt that they did not have employment rights as a result of
this working arrangement and did not appear to be particularly concerned
about this. This was the case across occupations; people felt that this was
not an ideal situation and they would like to have more rights, but believed
they were not employees and accepted the result of this.
…
The majority of respondents felt that although it was not ideal that they
felt they were not entitled to sick pay, holiday pay, maternity pay and
pension cover, they did not expect to have these rights as they were not
working for an employer. There was frequent mention of the trade-off
between employment rights and the flexibility of gig economy working,
with many feeling that, on balance, the flexibility outweighed the
downside in terms of employment rights.
36
66. Among the numerous problems with the above:
a. “Self-employed casual worker” is not an employment status. People who could
be described as such could either be limb b workers or independent contractors.
As seen in the extensive discussion above, whilst both categories fall within the
self-employment bracket, the method of work and the entitlement to
employment rights of the two categories are extremely different.
b. As seen above, it is not just employees to whom employment rights accrue.
c. For those respondents who are workers, they are entitled to holidays and
pensions.
d. So far as limb b worker status is concerned, there is not a trade-off between
flexibility and employment rights. As seen above, many of the workers who have
won tribunal cases have worked with an incredible amount of flexibility.
e. The only potential usefulness of the information cited here is to demonstrate the
extent to which some of the respondents had been misinformed about their
entitlement to employment rights. But for that usefulness to be analysed the
researchers would need to understand what was happening.
f. If a limb b worker, for example an Uber driver respondent to this survey, is not
particularly bothered about not having employment rights, because he genuinely
believes he is not entitled to any and that to be so entitled he must work set shifts,
this tells us nothing useful. The relevant question would be if the Uber driver,
knowing he is entitled to paid holidays and minimum wage, notwithstanding the
flexibility he currently enjoys, is bothered by the fact that Uber nevertheless
unlawfully deprives him of the rights to which he is legally entitled. It doesn’t take
a PhD to figure out that this question might get a different answer.
67. The authors display their confusion around employment law again at page 70, saying:
The lack of holiday pay had an impact on respondents, in that they knew
that if they wanted to go away, they needed to save up to ensure the
period of unpaid leave. This is the case, of course, for all those who are
self-employed.
Again, no, it’s not. The right to paid holidays accrues to employees and workers, the latter
being a sub-set of self-employment.
68. Finally, on the topic of incorrect portrayal of the law, the “Discussion guide” for
interviewers appended to the document has interviewers asking: “Do you feel that you
37
are self-employed, or does it feel more like you are employed by the online platform?
Probe for why this might be – ask for specific examples.” This bit is quite startling. If there
is one thing about the so-called “gig economy” and employment status that even the
casual observer is aware characterises the UK labour market, it is that in the UK there is a
third category: that of limb b worker. Indeed this third category is of particular
importance to the so-called “gig economy” because nearly every high profile tribunal case
that has been decided in this area to date has established the “gig economy” individuals
as pertaining to it.
EMPLOYMENT STATUS CONSULTATION
69. Para 1.5 of the introduction to this document helpfully sets out what one could have been
forgiven for misunderstanding based on your press release: “No decisions about whether
or how to reform employment status, or to aim for alignment between the tests for tax
and rights, have been made.”
70. At para 3.8 this document defines “self-employment” as
…a category for those who run and manage their own business, including
partners in partnerships. A genuinely self-employed person cannot be an
employee or Limb (b) worker for the purpose of employment rights.
And just as a refresher, Lady Hale DPSC in Bates said (para 25):
…the law now draws a distinction between two different kinds of self-
employed people. One kind are people who carry on a profession or a
business undertaking on their own account and enter into contracts with
clients or customers to provide work or services for them. ... The other kind
are self-employed people who provide their services as part of a profession
or business undertaking carried on by some-one else. …and thus a
“worker” within the meaning of section 230(3)(b) of the 1996 Act. ...
A similar comparison can be made between this document’s para 9.1, which states:
“Individuals are self-employed for employment law purposes if they are neither an
employee nor a worker…” and Lady Hale’s para 31 of Bates:
38
As already seen, employment law distinguishes between three types of
people: those employed under a contract of employment; those self-
employed people who are in business on their own account and undertake
work for their clients or customers; and an intermediate class of workers
who are self-employed but do not fall within the second class.
71. And so with this I would like to welcome your department to Employment Law’s Flat Earth
Society. It is nothing short of astounding that what I can only assume to be in-house
lawyers at BEIS could do an entire review of employment status, including references to
leading cases, and not understand that limb b workers are self-employed. Taylor’s excuse
was that he was not a lawyer76; I look forward to hearing what yours is.
72. This document’s inaccurate portrayal of the law continues in Chapter 10 which concerns
the alignment between tax and rights. Para 10.1 says:
Currently, the employment status frameworks for tax and rights do not
fully align. This is clearly evidence by the existence of a third category for
rights, meaning it is not possible for both the terms employee and self-
employed to have the same meaning across both systems without also
introducing a third category for tax.
Again, this is incorrect. As seen above, both employment law and tax law recognise
individuals as either employees or self-employed. In both regimes employees are those
individuals who work pursuant to a contract of service and self-employed people are
those individuals who do not work pursuant to such a contact. The fact that employment
law provides for rights for a sub-set of self-employed people does not mean that
“employee” and “self-employed” mean different things in employment and tax law. For
a refresher on this see Diagrams 1 and 2 above.
73. The entire narrative of the Taylor Review and your response rests on the false premise
that confusion around employment law is a large part of the reason why workers in the
76 See for example the podcast debate: https://soundcloud.com/unworkable/unworkable-episode-3-reviewing-the-taylor-review. This excuse does not cut much ice with us though. I am not a lawyer either, and none of the IWGB’s employees or lead officials are UK lawyers either. But as a union which seeks to represent workers whose livelihoods and rights depend upon their employment status, it is incumbent upon us to learn what we need to know or close down shop. Similarly, it was incumbent upon Matthew Taylor, as the person tasked with recommending reforms of employment law, to get to grips with the issues or resign and suggest the Government find someone more appropriate for the role.
39
so-called “gig economy” are not benefitting from the rights to which they are entitled.
We strongly disagree with this narrative and as seen in the abundance of examples
outlined above, it is clear that both the tribunals and the companies know exactly what
employment status these workers belong to. It is somewhat ironic that the only evidence
in the entirety of the Taylor Review and your 422 page response for the law being too
confused is how badly you all have bungled up your portrayal of it. I do fear, however,
that this is more down to intellectual laziness than the supposedly inherently confused
nature of worker status.
74. Much of this document also implies that the law may not be suited for the times. This
view can be seen clearly at para 5.8:
It is also important to consider whether these are the right principles for
the modern labour market, or if they need to be amended in any way to
ensure the right balance between protections and flexibility, as well as
providing greater clarity and certainty. If government decided to codify
the main principles into primary legislation, we would also need to
consider the level of detail and how to make use of secondary legislation
in order to keep legislation relevant.
It is worth pausing to examine this clichéd view for just a moment. Whilst codifying key
principles from the case law into primary legislation might not do much harm- as long as
the codification is indeed an accurate reflection of existing case law- I would suggest that
the exercise is rather a large distraction, for the following reasons:
a. There is no evidence, whatsoever, that the reason companies in the so-called
“gig economy” are misclassifying people is because they do not understand
the law; these companies are lawyered up beyond belief and indeed the bogus
contracts their lawyers draft for them tend to be based on a contemporary
and deep understanding of the relevant case law.
b. What needs to be avoided at all costs is simply supplying companies with a
checklist of things they need to avoid in order to avoid worker status,
otherwise all efforts will go into focusing on the checklist. The current multi-
factorial inquiry which predominates is a bulwark against the checklist
approach.
c. It is worth considering the remarkable achievement of worker status to keep
up with the times. Indeed, a concept introduced in the 1990’s, before the
40
technologies used by Uber could have even been imagined, is nevertheless
being interpreted so as to cover Uber drivers. It is precisely the lack of detailed
specificity in the definition which gives the tribunals the flexibility and ability
to define the scope of worker status based on the public policy objective
behind it: to entitle to employment rights a class of self-employed people who
are not genuinely in business on their own account or carrying out a profession
and contracting with customers or clients.
d. When the current definitions result in case after case coming down on the side
of the claimant, from a workers’ rights perspective that means these
definitions are working. To the extent that the limb b worker definition is
tweaked at all it should merely to be to address the personal service issue77.
e. The idea of allowing Government to use secondary legislation to update
employment status is terrifying. The Tories have shown time and time again
that they are not on the side of workers and giving your Government scope to
77 Like employee status, worker status requires that an individual perform the work personally. In other words, they cannot be allowed to send a substitute to do the work for them at will. This is why many “gig economy” companies put “substitution clauses” into the contracts they have with the people working for them. In many cases, for example the City Sprint tribunal, these clauses are found to be bogus. However, in the Deliveroo case the company was able to rely on this clause in order to avoid worker status. As above, we say that case was wrongly decided and have applied to judicially review the decision. However, there is also an argument to be had about whether the courts have properly interpreted the personal service requirement for worker status. This is on the basis that the case law has established that courts and tribunals, when assessing worker status, need to take into account many of the same factors as with employee status, but setting the threshold at a lower pass mark. In other words it should be easier for an individual to demonstrate worker status than employee status. This is indeed how much of the case law has developed, with the notable exception of the personal service requirement, which has been interpreted in the same manner for both employee and worker status. The argument, however, is that this cannot be correct because in the case of employee status the personal service requirement is there as an aid to determine whether someone works pursuant to a contract of service (traditionally known as a master-servant relationship) whereas in the case of worker status the personal service requirement is there to help distinguish between those individuals who are in business on their own account from those who carry out their work as part of someone else’s business. As the personal service requirement has been interpreted on a continuum rather than as a binary (one can occasionally send a substitute under certain conditions and still be considered to provide personal service), it is therefore possible and necessary to set the personal service requirement at a lower pass mark for limb b workers than for employees. We were indeed given permission to make this argument before the Supreme Court in the case of Pimlico Plumbers Ltd and another (Appellants) v Smith (Respondent) UKSC 2017/0053 as interveners until Uber complained because they were refused permission to intervene and as a result were able to get us removed as well. It is of course still open to the courts to consider this issue. Even the slightest loosening of the personal service requirement for limb b workers would be fatal to Deliveroo’s case.
41
minimise the benefits to workers of tribunal and court rulings is not something
anyone who cares about workers’ rights could endorse.
f. It is true that there is confusion among workers around employment status
and rights, but this will not be properly addressed through more detailed
primary legislation. In my experience, Butterworth’s Employment Law 2017 is
not the first place workers go to understand their rights.
75. Chapter 8 of this document is of grave concern. Whilst assuring readers that you have no
desire to reduce minimum wage entitlement, the chapter then goes on to set out
consultation questions related to Taylor’s proposal on minimum wage:
In re-defining ‘dependent contractor’ status, Government should adapt the
piece rates legislation to ensure those working in the gig economy are still able
to enjoy maximum flexibility whilst also being able to earn the NMW.
76. Taylor’s rationale for this recommendation was utterly flawed for the following reasons:
a. The Taylor Review said78:
Platforms do not place limits on when individuals can log onto the
app but no individual should be expecting to be paid for all the time
that he or she has the app open (regardless of whether or not they
are seeking work). For instance, it would clearly be unreasonable if
someone could log onto an app when they know there is no work
and expect to be paid.
b. Putting aside for the moment the inappropriate use of the word “platform” (as
above), and the inaccurate generalisation of “gig economy” business models, we
agree that it would be unreasonable for someone to get paid merely for switching
on an app without any intention of working. We have never called for this, nor
have we ever seen any worker call for this, nor are we aware of any judgment
which said this entitlement should exist. The point is that in some cases,
“working” means having the app on and being ready, willing, and able to accept
jobs. This was decided to be the case in Uber, CitySprint, Excel, Addison Lee, etc.
c. In explaining the proposal the Review said79:
78 Page 37 79 Page 38
42
Building on the existing framework, platforms would be able to
compensate workers based on their output (i.e. number of tasks
performed), provided they are able to demonstrate through the
data that they have available that an average individual, working
averagely hard, successfully clears the National Minimum Wage
with a 20% margin of error.
d. This would put an incredible amount of power in the hands of the employers. Who
is going to verify their statistics? Indeed, these companies routinely claim that
their workers (or “sub-contracted independent contractors” to use some of the
bogus terminology) earn well above 120% of the minimum wage as is80 and as
such this proposal would represent 0 change. We don’t accept these claims and
indeed many of our members do not make the “averages” claimed by the
companies.
e. This proposal is also a dream come true for the employers who want to have all
the benefits of a large workforce in order to always quickly satisfy customer
demand, yet do not want to have to bear any of the costs. Contrary to the
Review’s patronising assertion that “if an individual knowingly chooses to work
through a platform at times of low demand, then he or she should take some
responsibility for this decision”, these companies’ models depend on workers
working at times of low demand. For example, Uber’s website81 says
Anywhere, anytime
Daily commute. Errand across town. Early morning flight. Late night drinks. Wherever you’re headed, count on Uber for a ride—no reservations required.
Uber wants there to be five drivers circling the block, desperate for a fare, who
can pick up a passenger within 5 minutes of them booking a ride.
f. In addition to the companies depending on people working during times of low
customer demand, some of the workers depend on this ability as well. In all of
80 For example, see http://www.cityam.com/268234/taylor-review-uber-deliveroo-business-groups-law-experts. 81 https://www.uber.com/en-GB/
43
the Review’s extensive extolment of the virtues of flexible working, for example
allowing a woman to work around childcare commitments, the Review appeared
not to have considered what would happen to that woman under this proposal?
What if because of childcare commitments that woman could only work at non-
peak times when she couldn’t earn the minimum wage on the basis of current
piece rates (even if an average worker working averagely hard, based on an
average of all of the employer’s data, broke 120% of minimum wage due to higher
earnings at busier times)? Should she not be entitled to at least a floor of the
minimum wage despite the fact that her employer’s business model depends on
people like her working those hours?
g. In sum, this proposal would strip the right to minimum wage out of the hands of
many workers in the so-called “gig economy”. Workers are not gaming the system
and there is no risk that companies will be unfairly taken advantage of. Contrary
to the Review’s repeated public assertions, prescribed shifts is not the only
alternative to the Review’s proposal. If companies raised pay overall then workers
would comfortably clear minimum wage even at times of low demand and those
who could would want to work at times of high demand to earn more money.
Similarly, if these companies are worried about taking on too many workers they
should look a little more carefully at managing the size of their workforce to match
demand. If the number of active workers struggles to keep up at a time of high
demand then companies can pay higher rates to get more people to turn up (as
they often already do). To suggest that the choice is strictly between this
damaging proposal and shift work is preposterous. Any worker working for a
company in the so-called “gig economy” should never earn less than the minimum
wage for the time they work and to suggest otherwise is outrageous.
77. We are reinforced in our view that this idea is a bad one by the fact that Taylor’s response
to criticism of it tended to dismiss the critics as not being smart enough to have
understood the proposal in the first place. For example, in evidence to the BEIS and DWP
select committees, Taylor is quoted as saying the idea was “in danger of being too clever
by half” and that it was “not one that is easy for people to fully get their head around”82.
78. I must confess, I am surprised that this suggestion, by far the worst in the entire Taylor
Review (and that’s saying something!), is rearing its ugly head yet again. For I thought the
idea had already been killed off. Indeed, the Government appeared to suggest this in an
82 See: https://publications.parliament.uk/pa/cm201719/cmselect/cmworpen/352/352.pdf, p17.
44
exchange between Frank Field MP and Business Minister Margot James MP in Parliament
on 11 July, 2017:
Frank Field MP: If the news reports are right, Matthew Taylor goes for
flexibility rather than always implementing the national minimum wage.
Can we have an undertaking from the government that they will always
abide by the national minimum wage even if there’s a loss of flexibility?
Minister Margot James MP: I congratulate, um, the honourable gentleman
for all the work he did chairing the Work and Pensions select committee
on these matters in the last parliament. Um, and I, I can assure him that,
um, minimum wage rates, um, are absolutely sacrosanct- there will be no
trade off.
79. Then, as seen above, the BEIS/DWP joint report recommended the suggestion never see
the light of day. Yet rather than let the idea die a deserved death you appear to be
reviving the carcass with consultation questions such as:
Q53: If the emerging case law on working time applied to all platform
based workers, how might app-based employers adapt their business
models as a consequence?
Q55: How might platform-based employers respond to a requirement to
pay the NMW/NLW for work carried out at times of low demand?
Q57: What are the practical features and characteristics of app-based
working that could determine the balance of fairness and flexibility, and
help define what constitutes work in an easily accessible way?
Q58: How relevant is the ability to pursue other activities while waiting to
perform tasks, the ability of workers to refuse work offered without
experiencing detriment, requirements for exclusivity, or the provision of
tools or materials to carry out tasks?
Q59: Do you consider there is potential to make use of the data collected
by platforms to ensure that individuals can make informed choices about
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when to log on to the app and also to ensure fairness in the determination
of work for the purposes of NML/NLW?
Again, from a workers’ rights perspective, we’re operating on the basis of if it’s not
broken, don’t fix it. Given that the current state of the law is that the Uber driver,
CitySprint courier, Addison Lee courier, etc. are considered to be working and therefore
entitled to minimum wage for the time they are “logged on”, in their area of work, and
ready, willing and able to accept jobs, I cannot conceive of any answers to the questions
set out above which might lead to a more favourable minimum wage entitlement for
these workers. I also have to say- and do forgive me if the following is unduly influenced
by my general mistrust of you and your party- that all the mentions of fairness in the
questions cited above do rather create the impression that you might be concerned the
current law isn’t fair to the likes of Uber and CitySprint.
THE GOVERNMENT RESPONSE8384
80. Finally, having disposed of our preliminary remarks, we now come on to your response.
To say the response was “underwhelming” would not do the matter justice. John Hendy
QC, one of the UK’s leading employment barristers, put it slightly more sharply85:
It might be hard to imagine that the tedious, barren worthlessness of
Matthew Taylor’s Report on ‘Good Work’ could be surpassed. But it has
been. The government’s Response to it (also called ‘Good Work’) is yet
83 As in Dead on Arrival, we will not be commenting on those issues which do not (or have not traditionally) directly affect(ed) IWGB membership. We will leave the commenting on these matters to those more qualified to do so. These areas include proposals on agency workers, enforcement of tribunal awards, genuine independent contractors, the “hidden economy”, apprenticeships, and internships. 84 There is a fair amount of mismatching between the text of the response and the table at the end of the response so far as the numbering of Taylor’s recommendations is concerned. For ease of reference I have opted to use the numbering found in the table at the end of the response. 85 For John Hendy QC’s full article on the topic, see: http://www.ier.org.uk/blog/%E2%80%98good-work%E2%80%99-government%E2%80%99s-response-taylor-review
46
more tedious, barren and worthless. … No real change is proposed to
anything.
81. As we work our way through the rambling rickle of rubbish that constitutes your response
to the Taylor Review, let’s remember that whilst it is disconcertingly easy to poke holes
in the intellectual coherence and lambast the ineffectiveness of your response, what’s at
stake is not merely academic. People’s livelihoods, security, ability to take holidays with
their children, ability to pay their bills when they fall ill, are all affected. It is not the
lawyers, thinktankers, and academics who criticise you who lose out from this response,
it is the Uber driver who as is needs to work full time just to break even, it is the cycle
courier who has to take out three tribunal claims just to enjoy the holidays and minimum
wage to which he is legally entitled that suffer. Britain’s low paid workers are screaming
for action and instead you have given them a slap in the face.
82. Now let’s move on to the detail. The remainder of this section broadly follows the
headings used in your Good Work document.
Good Work86
83. In this section you explain that you accept- with the exception of reserving some activities
to BEIS rather than the Low Pay Commission (LPC)- recommendations 45-53 from the
Taylor Review, all of which concern “good work”, and all of which we classify as “too fluffy
for analysis” in Appendix A. It’s all good and well to talk about quality work, but given
that even on your own account you’re not going to publish the “final list of measures”
outlining your “baseline assessment of the quality of work currently in the UK economy”
until autumn 2018, for now workers will just have to sit and wait.
84. Don’t get me wrong- we’re not saying Government shouldn’t “place equal importance on
the quality of work as it does on the quantity” or that your department shouldn’t “take
the lead for Government in identifying emerging issues and be the custodian for ensuring
market conditions allow for the creation of quality work”. What we do have gripes about
is you taking nearly two years to announce you will do what you should have already been
doing and then claiming it is progress.
86 Taylor’s Review was entitled “Good Work”, the Government response was entitled “Good Work”, and the first substantive section of “Good Work” was also entitled “Good Work”. In the future, you might want to vary up the titles a bit. In addition to variety it’s also worthwhile trying to use headings and titles which accurately reflect the content contained therein. You might want to consider our preferred title, Bad Job, for example.
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Informed Choices
85. In the sub-section entitled “Clarity in the law”87, you deal with Taylor’s recommendations
1-3, 5, and 9 on employment status and qualifying periods. With all five of these
recommendations you are not announcing any immediate concrete change, but rather
further consultation and investigation. And we have already seen above the highly
problematic nature of your employment status consultation. Again, the question needs
to be put: if your intention all along was to consult on matters of employment status
definitions, titles, degree of detail in primary legislation, etc. then what precisely was the
point of the Taylor Review? Surely you didn’t first become aware that employment status
was relevant to workers’ rights when you read Taylor’s Review?
86. In the sub-section entitled “Transparency of entitlement”88 you deal with Taylor’s
recommendations 6, 11, 4, 10 and 41. And you even come up with your own suggestion!
This sub-section merits a little more detail.
87. Taylor’s recommendation 6- that the right to a written statement of employment
particulars should be extended to limb b workers89 in addition to employees- is the one
recommendation that we “wholeheartedly endorse in current form”. So it was refreshing
to see you say90:
The government believes that everyone in work should have essential
information about the working relationship they have entered into. We
therefore accept this recommendation and will extend the right to written
particulars to all workers.
Our enthusiasm dissipates when we get to the next paragraph where you say: “We are
consulting on how best to achieve this and what information this statement should
include.” Seriously? The right of employees to obtain a written statement of
employment particulars, set out at s1 of the Employment Rights Act 1996, already has a
highly detailed list of particulars employers must provide. Of course there’s no harm in
reviewing legislation from time to time and updating it to keep up with the times, but
sometimes you need to balance out a need for action with the desire to consult until the
87At pp30-31 88At pp32-35 89“Dependent contractors” in Taylor parlance. 90At p32
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cows come home. This is a perfect example of a simple, straightforward
recommendation, which whilst by no means a game changer would represent a modest
improvement. Instead of simply extending the right without further ado and at least
giving something concrete to the workers who have been waiting for far too long, you
are “consulting”. When your “consultation” ends at the end of May, you will no doubt
want to consider the results. And given your track record of delay between obtaining
information and announcing action (unsurprising the UK has a productivity problem
given your example), who knows when limb b workers might eventually enjoy this simple
right. Again, just what exactly was Taylor doing if not “consulting” on basic things like
this?
88. In this sub-section you also respond to Taylor’s horrendous minimum wage proposal,
saying:
We recognise that modern business models are changing employment
practices and that innovations which lead to work being offered in small,
discrete packages through digital platforms can raise questions about how
the NMW and NLW apply. It is important that those in the gig economy
who are workers are protected by the NMW and NLW, while we preserve
the flexibility and benefits – for both workers and consumers – that these
platforms offer. We will therefore consult to gather further information
and input on how definitions of working time can and should apply to
platform working.
The problems with Taylor’s minimum wage proposal, and with the consultation on it, have
been explored at length above. Suffice to say here that if you truly had the best interests
of low paid workers in the so-called “gig economy” at heart, you would have taken this
opportunity to declare in no uncertain terms that Taylor’s minimum wage proposal will
not be taken forward.
89. With regard to Taylor’s recommendation 10 that the Government promote awareness of
holiday entitlement and allow for the possibility of limb b workers taking “rolled up”
holiday, it is encouraging to see that at last someone in this whole exercise is paying
attention to the law. Indeed you state that you will not be taking forward the rolled up
holiday bit- allowing employers to simply top up pay for workers instead of workers
having to take actual time off- because of EU law. In Dead on Arrival we did point out
49
that the rolled up holiday idea would be “complicated, to say the least, under EU law”91.
But beyond that one needs to draw attention to the irony, or dare I say utter hypocrisy,
of this Government claiming to want to promote awareness of workers’ rights to paid
holiday. Indeed it is hard to think of a single piece of UK legislation which has been the
subject of more Tory ire92, has been modified as much as possible to decrease
entitlements for workers, and which bears so little resemblance to the EU Directive it is
intended to implement, than the Working Time Regulations 1998. In just one example of
this, the Tory government capped at two years the amount of unpaid holidays workers
could claim in response to Employment Appeal Tribunal decisions to the effect that Article
7 of the Working Time Directive meant workers should be entitled to be compensated
holiday pay equivalent to what they actually earn whilst working rather than equivalent
to their contractual pay93. This was purely and solely to protect businesses at the expense
of workers94.
90. With regard to Taylor’s recommendation 41 on improving guidance on maternity leave
and protection- which we classified as “too fluffy for analysis”- the fact that you state you
will “continue to work with a range of partners” on the matter doesn’t particularly fill one
with optimism that important change is coming.
91. Also in this sub-section, in big bold letters, the response states95:
Following a recommendation by the Low Pay Commission in 2016, the
government will extend the right to receive a payslip to all workers.
91 Article 7 of the Directive of the European Parliament and of the Council (2003/88/EC), known colloquially as the Working Time Directive, states:
1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.
2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.
92For example, see: http://www.huffingtonpost.co.uk/entry/working-time-directive_uk_5a38f926e4b0860bf4aaee7f 93 http://www.legislation.gov.uk/uksi/2014/3322/pdfs/uksi_20143322_en.pdf 94 Luckily, yet again, this attempt has been invalidated by CJEU case law, in particular the case of King v The Sash Windows Workshop Ltd & Richard Dollar (Case C-124/16). 95 At p32
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The response goes on to say that you96:
…plan to lay legislation shortly to both extend the right to receive a payslip
to all workers, and to require that employers state the hours being paid for
on the payslips of time-paid workers.
Putting aside for the moment the question of why it has taken you since 2016 to take
forward such a simple proposal, this announcement is quite important for as far as I can
tell it one of just two instances which forms the basis for the claim in your press release
that “In some cases the government plans to go further than the review’s proposals”97.
And of course extending the right to payslips to limb b workers is a welcome yet hardly
significant improvement. Indeed, true to your word, on 8 February, 2018 you laid before
Parliament The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment)
Order 201898, which is due to come into effect on 6 April, 2019. Whilst it has the bit about
including hours in the payslip, it says nothing about extending the right to limb b workers.
If you just forgot, or it is coming later, do forgive my misunderstanding.
92. In the sub-section entitled “Embedding clarity and transparency”99 you say you will take
forward the proposal of setting up an online tool which “determines employment status
in the majority of cases”. But of course this won’t happen until changes are made to
employment status definitions. And those changes won’t be made until you’re done
consulting. So to sum up where we are with this one: an ineffective and lackluster idea
will be implemented after you finish a flawed consultation based on an incorrect
understanding of the law which is only being conducted after waiting seven months after
the release of Taylor’s 10 month review. Not exactly filled with inspiration here.
96 At p33 97 The other example regards the ability of workers to request more stable contracts (more on which below). The press release also claimed that the Government announcement that it would enforce “vulnerable workers’ holiday and sick pay for the first time” also went further than the Taylor Review, but this is incorrect as this proposal was contained in Taylor’s recommendation 19. 98 See: http://www.legislation.gov.uk/uksi/2018/147/pdfs/uksi_20180147_en.pdf 99 At p35
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A Fair Deal
93. In the sub-section entitled “Genuine two-way flexibility”100 your response deals with
Taylor’s recommendations 8, 13, 16, and 40.
94. With regard to Taylor’s recommendation that the LPC consider a higher minimum wage
for non-guaranteed hours, you have announced you will agree to ask the LPC to indeed
consider it. We classified this recommendation as “potential to be good but not enough
detail to know”. I’m afraid we’re no further along our evaluative exercise today. Luckily
for those low paid workers on 0 hours contracts it appears you and the LPC are going to
work at break-neck speed so as to have an assessment for Ministers as early as October
2018! This is precisely two years and two months after Prime Minister May stood outside
10 Downing Street promising a new deal for low paid workers. Perhaps- as I’m an
economist by training- I’m underestimating the difficulty of the task at hand. But taking
two years and two months to figure out a higher minimum wage rate for vulnerable
workers on 0 hours contracts does seem like a long gestation period.
95. In your response to Taylor’s recommendation 13 we have the second and final example
of where you say you go further than the Taylor Review. Whereas Taylor was
recommending extending the “right to request” better contracts just to agency workers
and 0 hours workers, you say:
…the government will go further and create a right for all workers rather
than specific groups to request a more predictable contract where
appropriate.
Congratulations. Except it is somewhat misleading to classify a “right to request” as a
“right” at all. What happens when the employer says no? The idea that this could even
be branded as a partial solution to the problem of insecurity beggars belief. This would
be akin to the Tories’ strategy for reducing net immigration numbers to the tens of
thousands being based on the Home Secretary simply having the right to request that the
immigrants voluntarily leave the country and requiring them to have a good reason if they
opt to stay. Something tells me you’d have a hard time selling that one to your base.
96. In any case, it’s not immediately clear who besides 0 hours contract workers would be in
need of a contract which more accurately reflects their hours anyway, but to the extent
those people are out there extending this meaningless right to request would of course
100 At pp38-43
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technically be going above and beyond Taylor. But then we come on to the next sentence:
“The consultation on transparency will consider how best to effectively implement this
right to request.” If even the most meaningless and simplest of ideas need to be
consulted on before implementation then it does rather paint a picture of utter
incompetence.
97. Recommendation 16 concerns new duties on employers to communicate to its workers
certain information on workplace structure. We classified this as “would do no harm but
also won’t achieve a whole lot” but it turns out you were- according to yourself- already
implementing this though your corporate governance reforms. One more example of the
fruitlessness of the Taylor Review.
98. Recommendation 40 on promoting flexibility in the workplace we classified as “too fluffy
for analysis” which unsurprisingly you accepted in its entirety.
99. The sub-section entitled “Inclusive dialogue” contains responses to a number of Taylor’s
recommendations which we do not address as they are intended for independent
contractors. However, it is worth commenting on recommendation 14 regarding
extension of the Information and Consultation of Employees Regulations 2004. In Dead
on Arrival we explained at length why we thought this recommendation wouldn’t change
much101. The point I wish to make here is one that has been made throughout this letter:
it is mindboggling that yet again your response to a near meaningless suggestion is not to
reject it, nor to adapt it so it becomes more meaningful, nor to simply implement it, but
rather to consult.
100. Recommendation 15 on working with partners to promote better employee
engagement and workforce relations we classified as “too fluffy for analysis” and
unsurprisingly you accepted in its entirety.
101. The sub-section entitled “Quick and effective redress”102 contains the response to
a few recommendations with which we do not deal. But there is some material there on
which we must comment.
102. It is refreshing to see that you accept the need for Government to enforce the
rights to paid holidays and sick pay contained in Taylor’s recommendation 19. But it is
disappointing to see that yet again, rather than acting you are consulting. It is also
concerning to see that you seem to think that HMRC’s minimum wage enforcement
record has been effective. For example, at p17 of your response, you state:
101 At pp40-43. 102 At pp46-51.
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The two-tier approach to enforcement in the UK works. Those who are
most open to exploitation and abuse see basic rights enforced by the state,
whereas others are able to bring their cases to an employment tribunal via
Acas and the free process of early conciliation.
This statement is problematic, to say the least. As a general rule, those who are most
open to exploitation certainly do not see their rights enforced by the state. In addition to
the fact that very few employment rights are subject to any government enforcement-
either theoretical or practical- the enforcement of minimum wage has been extremely
poor. In the past seven years in which I have been involved in representing low paid
workers I have not come across one single case of the people I represent having their
rights enforced by the state. My anecdotal experience appears to stack up with the view
of your own Director of Labour Market Enforcement, Sir David Metcalf, who in evidence
to the BEIS and DWP select committees, said103:
If you take HMRC and the minimum wage, there are 1.3 million firms with
employees. They took 2,600 cases last year. That means the average firm
can expect an investigation once every 500 years. …if you don’t have
enough enforcement resources, then the punishments should be larger.
103. Given your apparent complacency with the Government’s enforcement track
record thus far, it is perhaps worth re-emphasising why enforcement is important.
Indeed, an effective enforcement regime which creates serious incentives for business
compliance, is the single most important measure Government could adopt to address
the problem of employment rights in the so-called “gig economy”. In addition to the
obvious point about nearly every high profile “gig economy” tribunal case being decided
the same way meaning the problem is not the law but its enforcement, I shall illustrate
the point by way of two anecdotes.
104. First, let’s look at CitySprint. In January, 2017 we won an employment tribunal
claim against them, establishing Mags Dewhurst (a cycle courier and currently the IWGB
Vice-President) as a limb b worker104. CitySprint, as one might expect, appealed the
decision. The appeal was due to be heard by the Employment Appeal Tribunal on 29
November, 2017. Then just shortly before the appeal someone at CitySprint figured out
103 See: https://publications.parliament.uk/pa/cm201719/cmselect/cmworpen/352/352.pdf, p22. 104 For more on which, see: https://www.theguardian.com/business/2017/jan/06/courier-wins-holiday-pay-in-latest-key-tribunal-ruling-for-gig-economy.
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that it would be cheaper and easier for them to get around the worker status ruling by
simply ignoring the tribunal decision rather than appealing. So in November the
company issued new “contracts” to couriers. I put “contracts” in quotes because the
company’s previous “contracts” were held to bear no resemblance to the reality of the
situation by the tribunal. Nevertheless, CitySprint didn’t even claim that these new
“contracts” changed the legal relationship between the couriers and the company. They
simply said:
We have updated our [cycle] courier tender documents to simplify the
language in these, further clarifying the rights and flexibilities available to
self-employed couriers who provide their services to us. We enjoy a great
relationship with couriers, who continue to enjoy the freedom and
flexibility of their current role.105
In other words, CitySprint disagreed with the tribunal decision but rather than appeal they
ignored, safe in the knowledge that Government would do absolutely nothing. The only
risk was that we bring another employment tribunal claim, the implications of which they
could also go on to ignore.
105. The other anecdote regards the case against The Doctors Laboratory (TDL). In
March, 2017 we launched a case against this company, on behalf of a number of its in-
house couriers, arguing that they were employees, and in the alternative, limb b
workers106. The company had classed them as independent contractors and deprived
them of rights. The company responded to our tribunal claim by admitting that in fact
the couriers were limb b workers107. Then, just this month, and only weeks before a
preliminary employment tribunal hearing was going to decide the matter, the company
admitted some of the couriers were employees108.
106. So far, so good, at least in terms of our winning spree. But earlier this month TDL’s
solicitor rang me to let me know that they had suspended a few couriers, including one
105 Quoted in the Guardian; see: https://www.theguardian.com/business/2017/nov/15/citysprint-employment-rights-courier-minimum-wage-holiday-pay 106 For more on which, see: https://www.theguardian.com/business/2017/mar/07/medical-couriers-doctors-laboratory-nhs 107 For more on which, see: https://www.theguardian.com/law/2017/jun/29/blood-supply-company-concedes-worker-status-of-couriers-to-nhs 108 For more on which, see: https://www.theguardian.com/law/2018/feb/07/couriers-carrying-blood-for-nhs-win-full-employment-rights
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of the ones they had just recognised as an employee, on the grounds that their “right to
work” checks didn’t pass. He assured me it was not victimisation but that, with no sense
of irony whatsoever, his hands were tied because the company couldn’t risk employing
someone who didn’t have the right to work. For the record, I believe him that it was not
victimisation. Also for the record, the courier in question is allowed to lawfully work in
the UK, the problem was just a technicality. But the point is the difference with which
the company treated employment law and immigration law. In the case of employment
law it was content to deprive its couriers of the rights to which they were legally entitled
for nearly two decades without a second thought, and only rectified the problem after
legal action by us. In the case of immigration law, the mere hint that something might
be amiss, even on the basis of a technicality, led to them immediately suspending
couriers with no pay. This is because immigration law’s enforcement regime is serious:
potential civil penalties of up to £20,000 per undocumented worker and potential
criminal sanctions of unlimited fines and a five year jail sentence109. When employers
are given the right incentives they obey the law and they adopt a risk-averse approach
to regulation.
107. So with all of the above in mind, it is disappointing that:
a. Government enforcement of employment law appeared to be little more than an
after-thought for Taylor;
b. The Government doesn’t appear to have spent much of the past half year thinking
about it either;
c. You are under the delusional impression that the Government has done a good
job enforcing minimum wage;
d. Rather than a serious programme of action and thorough overhaul of the
enforcement regime, what appears to be on offer is months of consultation to
potentially end up with an equally ineffective enforcement regime for holidays
and sick pay as that for minimum wage.
108. The response then goes on to dispose of Taylor’s recommendations 20 and 21
regarding free employment status tribunal hearings and reversing the burden of proof
in these hearings110. Of course, the recommendation on free tribunal hearings, as
modest as it was, has been rendered irrelevant by the decision of the Supreme Court
that the Government’s employment tribunal fee regime was unlawful. But in any case,
109 See: https://www.gov.uk/penalties-for-employing-illegal-workers 110 At p49
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your response says about both of these recommendations: “…we do not believe that it
is necessary to take these recommendations further at this stage”, which I must admit
I’m having difficulty squaring with the claim in your press release that111 “The
government has acted on all but one of Matthew Taylor’s 53 recommendations.”112 I
suppose you could consider the fact that you lost your Supreme Court case on
employment tribunal fees as you “acting on” the recommendation to make some
hearings free. But unless you lost the case on purpose, it’s a bit of a stretch.
109. At p51 of the response you appear to endorse the need for more and higher fines
on employers who ignore the law (Taylor’s recommendation 24) and for increased
compensation in certain circumstances (Taylor's recommendation 25). Both
recommendations are predicated on an employer losing a second employment status
case and as such do absolutely nothing to punish employers who misclassify an entire
workforce as independent contractors for decades until they lose their first employment
tribunal case. But perhaps more remarkably, I am struck by how much of your response
appears to endorse solutions which have such an indisputable track record of
ineffectiveness. This can be seen with your consideration of extending the Information
and Consultation of Employees Regulations (rather than collective bargaining) as a
method of increasing worker/employee voice. But it can also be seen here, in your
endorsement of a mechanism which according to your own department has barely been
used113:
…Since introduction in 2014, only 20 aggravated breach financial penalties
have been imposed on employers. Anecdotal stakeholder accounts also
suggest that part of the reason for this underuse is concern that an
employer may prioritise a state debt over an award owed to the claimant.
The total value of the 20 penalties imposed is just over £54,000. The total
paid is just over £17,700 and were fully paid within 21 days so the 50%
discount applied. There are six unpaid penalties at a value of £19,000. Of
the 20 penalties issued seven were for the maximum value of £5,000 and
111 https://www.gov.uk/government/news/millions-to-benefit-from-enhanced-rights-as-government-responds-to-taylor-review-of-modern-working-practices 112 The one recommendation you claim not to have “acted on” regards the equalisation of national insurance contributions between employees and the self-employed. 113 The following passage is from Consultation on enforcement of employment rights recommendations, pp22-23. Paragraph numbering and footnotes have been removed.
57
two were for the minimum value of £100. The median penalty issued is
approximately £3,000.
Oh yeah, on both proposals you are also “consulting”.
Security of Opportunity
110. In the sub-section entitled “Increased mobility”114 the response deals with Taylor’s
recommendations 35-38. We classified all of these as “too fluffy for analysis” and all of
these the Government endorses. To the extent that it might have been possible to further
develop these proposals so as to give them enough concrete meaning and useful
substance to convince us that there will be a direct, tangible, and important benefit to
our members, you didn’t take the opportunity to do so.
111. In the sub-section entitled “Health and wellbeing at work”115 the response deals
with Taylor’s sick pay proposal (recommendation 43), namely that statutory sick pay (SSP)
should be extended to limb b workers, but that the right should be pared down for
everyone so that it accrues on the basis of length of service. The paragraph that outlines
the response to this recommendation contains so much government-speak that it borders
on incomprehensible116:
Reform of SSP is being considered as part of Improving Lives: the Future of
Work, Health and Disability, published in November 2017. As part of this,
we have committed to bring forward a consultation on changes to SSP to
better enable phased return to work, before introducing this reform. The
government will fully consider these issues in the round as part of wider
work on how to achieve the appropriate balance of incentives and
expectations for employers. … We are therefore considering research and
consultation findings, against a range of options on employer obligations
and incentives, including Matthew Taylor’s proposals on SSP eligibility and
accrual… … The Work and Health Unit will therefore run a comprehensive
programme of analysis and research examining the wider framework
114 At pp54-58 115 At pp59-60 116 At p59
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within which employers make their decisions and will report back on
preliminary work later this year. ...
After having read it six times, I have come to the conclusion that what you are saying is
you’re going to consult. For what it’s worth, in our view the idea to extend sick pay to
limb b workers was by far the best idea in the entire Taylor Review (though that’s not
saying much). The idea to pare down entitlement is one of the worst. To the extent that
the obligation to pay SSP currently serves as a disincentive to hiring- as Taylor asserted-
the Review did not cite a single shred of evidence for this proposition.
112. With regard to Taylor’s proposal on protections for people returning to work after
a period of illness, you also say you will consult117; quelle surprise!
113. In this sub-section you also agree with Taylor’s proposal (recommendation 42) on
national and local government working together “to develop integrated approache[s] to
improving health and wellbeing at work”118. Guess what we classified it as? Yup- “too
fluffy for analysis”.
114. In the sub-section entitled “Support for the self-employed”119 you deal with
Taylor’s proposals that were clearly intended for independent contractors
(recommendations 27, 31, 30, 26, and 33). We will therefore not comment on these other
than to say that you are right not to take forward the proposals on equalising national
insurance obligations for employees and the self-employed, albeit for the wrong reasons.
Of course, this one affects us in that limb b workers are self-employed and therefore pay
national insurance contributions as such. We say slightly more favourable rates are
justified on the basis that limb b workers tend to incur far higher expenses than
employees in order to do their jobs. You say you agree with Taylor but nevertheless won’t
be taking the reform forward (no doubt due to the political backlash you faced last time
you guys tried to pull this).
117 At p60 118 At p60 119 At pp61-65
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CONCLUSION
115. As we have considered the Government’s response to the Taylor Review in great
detail above, just a few general comments will suffice for this section.
116. First, the press release stating the Government had “acted on” 52 of Taylor’s 53
recommendations has adopted by far the widest use of the term “acted on” in human
history. As seen above, most of what you have done is nothing more than kick the can
down the road with further consultations and considerations. A process whose
commencement was long overdue, which has already taken far longer than necessary to
date, has been further extended with no end in sight. The low paid workers providing the
labour for Britain’s so-called “gig economy” are essentially no better off now than they
were before the Government announced its response. Of course you are promising that
when you are done with it all, they will be. But in that regard we are exactly where we
were when Prime Minister May stood outside 10 Downing Street in the summer of 2016.
117. Of the 38 responses to recommendations we have looked at, 20 involve some
form of kicking the can down the road, either to consult or because you are monitoring
some ongoing work, or because you will return to the matter later, or because it’s merely
endorsing a recommendation that someone else do some research, etc. Of the 16
recommendations that you accept in their entirety, or very broadly agree with, or appear
to be taking some form of immediate action, we had classified every single one as “too
fluffy for analysis”.
118. With regard to the IWGB’s commonsense proposals of immediate rigorous and
effective government enforcement of the law and extending employee rights to limb b
workers you have utterly failed.
119. In a sign of just how badly you have lost the plot on this one, buried in the
Communications Toolkit document is the announcement that you will be:
Making Matthew Taylor becoming the first person to be appointed to the
Industrial Strategy Council to ensure the Government delivers on its pledge
of fair and decent work for all
Putting aside for the moment the subjective views observers might have as to whether
the Taylor Review “went far enough” to protect workers, it is difficult to understand how
any objective observer could honestly say that Taylor did a good job getting to grips with
the issues and demonstrating the necessary depth of understanding to carry out a proper
review. But if one were to take a slightly more cynical view, Taylor has been doing and
60
will continue to do what you want: creating a lot of hype, fanfare, and publicity around
the idea that Government is doing something to solve the problem when in reality nothing
changes. If that’s the task at hand, Taylor’s the man for the job.
120. I appreciate that some of this letter might create the impression that we are
critical of your response to the Taylor Review. But I wouldn’t want you to think we won’t
be cooperating with you at all. For example, in your Communications Toolkit document
you state:
Your support is invaluable in reaching the people who the Government’s
response may impact, and creating a dialogue across the nation. Ways you
can support include:
Posting social media content and creating your own with relevance
to your audiences;
Including content in newsletters, blogs and online (both internal
and external);
Longer term support: Host a roundtable or event with stakeholders
linked to modern working practices and the wider Industrial
Strategy.
I can assure you we will be taking you up on each of those suggestions. The document
was even so kind as to set out a few suggested tweets and facebook posts. If it’s OK with
you, ours will be slightly different.
121. In sum, it was this Government that from day one set itself the task of addressing
insecure work. It was this Government that announced, to great fanfare, the Taylor
Review to deal with the problem. It was your party that promised to deliver if elected.
And you were the guy tasked with delivering on behalf of the Government. You have
miserably failed to meet the standard you yourself set, and for this reason I trust you will
agree with me that your position has become untenable. As such, you should resign.
Yours sincerely,
Dr. Jason Moyer-Lee General Secretary Independent Workers’ Union of Great Britain (IWGB)
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Appendix A: Taylor Recommendations and IWGB Classifications
Taylor Recommendation IWGB Classification120
Government should replace the minimalistic approach to legislation with a clearer outline of the tests for employment status, setting out the key principles in primary legislation, and using secondary legislation and guidance to provide more detail.
would do no harm but also won’t achieve a whole lot
Government should retain the current three-tier approach to employment status as it remains relevant in the modern labour market, but rename as ‘dependent contractors’ the category of people who are eligible for worker rights but who are not employees.
would do no harm but also won’t achieve a whole lot
In developing the test for the new ‘dependent contractor’ status, control should be of greater importance, with less emphasis placed on the requirement to perform work personally.
mixed bag- has good and bad elements
In re-defining ‘dependent contractor’ status, Government should adapt the piece rates legislation to ensure those working in the gig economy are still able to enjoy maximum flexibility whilst also being able to earn the NMW.
Bad
In developing the new ‘dependent contractor’ test, renewed effort should be made to align the employment status framework with the tax status framework to ensure that differences between the two systems are reduced to an absolute minimum.
Bad
Government should build on and improve clarity, certainty and understanding of all working people by extending the right to a written statement to ‘dependent contractors’ as well as employees.
wholeheartedly endorse in current form
120 The “too fluffy for analysis” recommendations speak for themselves. However, explanations for the categorisation of all of the other recommendations can be found in Dead on Arrival, pp30-50.
62
Government should build on legislative changes to further improve clarity and understanding by providing individuals and employers with access to an online tool that determines employment status in the majority of cases.
would do no harm but also won’t achieve a whole lot
The Government should ask the LPC to consider the design and impacts of the introduction of a higher NMW rate for hours that are not guaranteed as part of the contract.
potential to be good but not enough detail to know
The Government should extend, from one week to one month, the consideration of the relevant break in service for the calculation qualifying period for continuous service and clarify the situations where cessations of work could be justified.
would do no harm but also won’t achieve a whole lot
Government should do more to promote awareness of holiday pay entitlements, increasing the pay reference period to 52 weeks to take account of seasonal variations and give dependent contractors the opportunity to receive rolled-up holiday pay.
mixed bag- has good and bad elements
Government should act to create a right to request a contract that guarantees hours which better reflect the actual hours worked, for those on zero hour contracts who have been in post for 12 months.
would do no harm but also won’t achieve a whole lot
Government should examine the effectiveness of the Information and Consultation Regulations in improving employee engagement in the workplace. In particular it should extend the Regulation to include employees and workers and reduce the threshold for implementation from 10% to 2% of the workforce making the request.
would do no harm but also won’t achieve a whole lot
Government should introduce new duties on employers to report (and to bring to the attention of the workforce) certain information on workforce structure. The Government should require companies beyond a certain size to: • Make public their model of employment and use of agency services beyond a certain threshold. • Report on how many requests they have received (and number agreed to) from zero hours contracts workers for fixed hours after a certain period.
would do no harm but also won’t achieve a whole lot
63
• Report on how many requests they have received (and number agreed) from agency workers for permanent positions with a hirer after a certain period.
HMRC should take responsibility for enforcing the basic set of core pay rights that apply to all workers – NMW, sick pay and holiday pay for the lowest paid workers.
potential to be good but not enough detail to know
Government should ensure individuals are able to get an authoritative determination of their employment status without paying any fee and at an expedited preliminary hearing.
would do no harm but also won’t achieve a whole lot
The burden of proof in employment tribunal hearings where status is in dispute should be reversed so that the employer has to prove that the individual is not entitled to the relevant employment rights, not the other way round subject to certain safeguards to discourage vexatious claims.
would do no harm but also won’t achieve a whole lot
Government should create an obligation on employment tribunals to consider the use of aggravated breach penalties and costs orders if an employer has already lost an employment status case on broadly comparable facts – punishing those employers who believe they can ignore the law.
would do no harm but also won’t achieve a whole lot
Government should allow tribunals to award uplifts in compensation if there are subsequent breaches against workers with the same or materially the same working arrangements.
would do no harm but also won’t achieve a whole lot
The Review believes that the principles underlying the proposed NI reforms in the 2017 spring budget are correct. The level of NI contribution paid by employees and self- employed people should be moved closer to parity while the Government should also address those remaining areas of entitlement – parental leave in particular – where self-employed people lose out.
mixed bag- has good and bad elements
Government should reform Statutory Sick Pay so that it is explicitly a basic employment right, comparable to the National Minimum Wage, for which all workers are eligible regardless of income from day 1. It should be payable by the employer and should be accrued on length of service, in a similar way to paid holiday currently. Government should ensure that there is good awareness of the right amongst workers and businesses.
mixed bag- has good and bad elements
64
Those individuals with the relevant qualifying period are already entitled to have their job protected for a period of time when they are away from work for perfectly reasonable reasons, for instance, having a child. A similar approach should be adopted for sick leave with individuals having the right to return to the same or a similar job after a period of prolonged ill health. This right to return should be conditional on engagement with the Fit for Work Service when an assessment has been recommended.
would do no harm but also won’t achieve a whole lot
Government should work with Investors in People, Acas, Trade Unions and others with extensive expertise in this area to promote further the development of better employee engagement and workforce relations, especially in sectors with significant levels of casual employment.
Too fluffy for analysis
Learning from the failings of Individual Learning Accounts the Government should explore a new approach to learning accounts, perhaps with an initial focus on those with a long working record, but who need to retrain and those in receipt of Universal Credit. The new £40 million Lifelong Learning Fund is a starting point for this and should be developed by bringing together employers, civic society and the education sector.
Too fluffy for analysis
Government should use its convening power to bring together employers and the education sector to develop a consistent strategic approach to employability and lifelong learning. This should cover formal vocational training, ‘on the job’ learning and development, lifelong learning and informal learning outside work. It could be linked to the longer-term development of life-time digital individual learning records. As part of this, the Government should seek to develop a unified framework of employability skills and encourage stakeholders to use this framework.
Too fluffy for analysis
Government should strongly encourage gig platforms to enable individuals to be able to carry their verified approval ratings with them when they move from the platform and to share them with third parties.
Too fluffy for analysis
In developing a national careers strategy, the Government should pay particular attention to how those in low paid and
Too fluffy for analysis
65
atypical work are supported to progress. It should take a well-rounded approach, promoting the role of high-quality work experience and encounters at different education stages.
As part of the statutory evaluation of the Right to Request Flexible Working in 2019, Government should consider how further to promote genuine flexibility in the workplace. For example it should consider whether temporary changes to contracts might be allowed, to accommodate flexibility needed for a particular caring requirement. Government should work closely with organisations like Timewise and Working Families to encourage flexible working and initiatives like “happy to talk flexible working” to a wider range of employers.
Too fluffy for analysis
Government should review and, in any event, consolidate in one place guidance on the legislation which protects those who are pregnant or on maternity leave to bring clarity to both employers and employees. In parallel with the range of non-legislative options and the consolidation set out above, the Government should consider further options for legislative intervention. If improvements around leadership, information and advice do not drive the culture change we are seeking, the Government will need to move quickly to more directive measures to prevent pregnancy and maternity discrimination.
Too fluffy for analysis
We recommend that the relevant Government Departments – BEIS, DCLG, DWP and DH – explore ways of supporting and incentivising local authorities, particularly City Regions and combined authorities, to develop integrated approaches to improving health and wellbeing at work.
Too fluffy for analysis
Government should seek to develop a better understanding of what progression at work is and public policy levers influence it. Building on the trials to date, Government should work with external providers to determine what really works in supporting individuals to obtain better quality – and not just more – work. This should not be limited to increasing earnings to a level of self-sufficiency in Universal Credit and should take particular account of the effect of increases in the National Living Wage. It should reflect the opportunities offered by atypical and gig working.
Too fluffy for analysis
66
The Government must place equal importance on the quality of work as it does on the quantity by making the Secretary of State for Business, Energy and Industrial Strategy responsible for the quality of work in the British economy.
Too fluffy for analysis
The Government should identify a set of metrics against which it will measure success in improving work, reporting annually on the quality of work on offer in the UK.
Too fluffy for analysis
The Department for Business, Energy and Industrial Strategy should take the lead for Government in identifying emerging issues and be the custodian for ensuring market conditions allow for the creation of quality work.
Too fluffy for analysis
The emphasis in industrial strategy and sector deals on technology and innovation should be linked to the importance of human factors in driving productivity and enabling more rewarding working lives.
Too fluffy for analysis
The LPC should have its remit widened so that it can both make recommendations to Government on what needs to change (including NMW rates) to improve quality of work in the UK as well as work with employers, employees and stakeholders to promote quality work across all regions and sectors.
Too fluffy for analysis
The LPC should work with experts, from the new Director of Labour Market Enforcement to the Chartered Institute of Personnel and Development, as well as business groups and trade unions and make recommendations to Government if changes to the legal framework are needed to ensure fair and decent work is delivered.
Too fluffy for analysis
The LPC should work with employers and worker representatives to ensure sector-specific codes of practice and guidance are developed that support the provision of quality work.
Too fluffy for analysis
The LPC should promote what works in sectors and encourage greater collaboration to improve quality work in low-paying areas.
Too fluffy for analysis
67
Appendix B: BEIS/DWP Select Committee Recommendations and IWGB
Classifications
BEIS/DWP Recommendation IWGB Classification
We recommend the Government legislates to introduce greater clarity on definitions of employment status. This legislation should emphasise the importance of control and supervision of workers by a company, rather than a narrow focus on substitution, in distinguishing between workers and the genuine self-employed.
mixed bag- has good and bad elements
We recommend the Government legislate to implement a worker by default model, as set out in Part 2 of our draft Bill. This would apply to companies who have a self-employed workforce above a certain size defined in secondary legislation.
would do no harm but also won’t achieve a whole lot
We recommend that the Government work with the Low Pay Commission to pilot, for workers who work non-contracted hours, a pay premium on the National Minimum Wage and National Living Wage. The Low Pay Commission should be responsible for identifying suitable companies to be included in this pilot, based on workforce size and turnover.
potential to be good but not enough detail to know
We recommend that the Government extend the time allowance for a break in service while still accruing employment rights for continuous service from one week to one month.
would do no harm but also won’t achieve a whole lot
We recommend that the Government creates an obligation on employment tribunals to consider the increased use of higher, punitive fines and costs orders if an employer has already lost a similar case. We further recommend that the Government takes steps to enable greater use of class actions in disputes over wages, status and working time.
would do no harm but also won’t achieve a whole lot
68
We recommend the Government rules out introducing any legislation that would undermine the National Minimum Wage/National Living Wage.
wholeheartedly endorse in current form
We recommend that the Government extends the duty of employers to provide a clearly written statement of employment conditions to cover workers, as well as employees. We further recommend that this right apply from day one of a new job, with the statement to be provided within seven days. This change should be made by secondary legislation under s23 (4)-(5) of the Employment Relations Act 1999.
wholeheartedly endorse in current form
We recommend that people on worker contracts, as well as employees, be counted towards the 50 workers needed before a company is covered by the ICE regulations. We also recommend the threshold for implementation of the regulations be reduced from 10% to 2% of the workforce. This would require amending secondary legislation under s42 of the Employment Relations Act 2004.
would do no harm but also won’t achieve a whole lot
We recommend that the Government brings forward stronger and more deterrent penalties, including punitive fines, for repeat or serious breaches of employment legislation, and expand “naming and shaming” to all non-accidental breaches of employment rights by businesses and supply chains.
Step in the right direction
We recommend that the Government provides the Director of Labour Market Enforcement and the main enforcement agencies with the resources necessary to undertake both reactive and proactive roles, including deep-dives into industrial sectors and geographic areas, and supply-chain wide enforcement actions. Where extra resources are needed, they should be funded through higher fines on noncompliant organisations. We also recommend that the Government sets out, in response to this report, how it
Step in the right direction
69
intends the powers and resources of the Director of Labour Market Enforcement will develop over the next five years.
70
APPENDIX C: RECOMMENDATIONS, CLASSIFICATIONS, AND
RESPONSES
Kicking the can down the road
Full implementation
Taylor Review Recommendation number
Taylor Recommendation IWGB Classification
Government response
1 Government should replace the minimalistic approach to legislation with a clearer outline of the tests for employment status, setting out the key principles in primary legislation, and using secondary legislation and guidance to provide more detail.
would do no harm but also won’t achieve a whole lot
Take forward further work on the case for legislative change and potential options for reform
2 Government should retain the current three-tier approach to employment status as it remains relevant in the modern labour market, but rename as ‘dependent contractors’ the category of people who are eligible for worker rights but who are not employees.
would do no harm but also won’t achieve a whole lot
Test relevance of current approach and nomenclature
3 In developing the test for the new ‘dependent contractor’ status, control should be of greater importance, with less emphasis placed on the requirement to perform work personally.
mixed bag- has good and bad elements
Consult on the detailed tests to determine a worker (or dependent contractor)
71
4 In re-defining ‘dependent contractor’ status, Government should adapt the piece rates legislation to ensure those working in the gig economy are still able to enjoy maximum flexibility whilst also being able to earn the NMW.
Bad Examine how working time should apply to the gig economy
5 In developing the new ‘dependent contractor’ test, renewed effort should be made to align the employment status framework with the tax status framework to ensure that differences between the two systems are reduced to an absolute minimum.
Bad Take forward further work on the case for legislative change and potential options for reform
6 Government should build on and improve clarity, certainty and understanding of all working people by extending the right to a written statement to ‘dependent contractors’ as well as employees.
wholeheartedly endorse in current form
Accept and will be taken forward once status changes are agreed
7 Government should build on legislative changes to further improve clarity and understanding by providing individuals and employers with access to an online tool that determines employment status in the majority of cases.
would do no harm but also won’t achieve a whole lot
Accept and will be taken forward once status changes are agreed
8 The Government should ask the LPC to consider the design and impacts of the introduction of a higher NMW rate for hours that are not guaranteed as part of the contract.
potential to be good but not enough detail to know
Agree to ask LPC to consider the impacts of this option and of alternatives
72
9 The Government should extend, from one week to one month, the consideration of the relevant break in service for the calculation qualifying period for continuous service and clarify the situations where cessations of work could be justified.
would do no harm but also won’t achieve a whole lot
Agree to extend the consideration of the relevant break in service, and consult on changes to clarify the situations where cessation of work could be justified
10 Government should do more to promote awareness of holiday pay entitlements, increasing the pay reference period to 52 weeks to take account of seasonal variations and give dependent contractors the opportunity to receive rolled-up holiday pay.
mixed bag- has good and bad elements
Accept and consult on the details of increasing the pay reference period to 52 weeks. Not taking forward proposal on rolled-up holiday pay.
13 Government should act to create a right to request a contract that guarantees hours which better reflect the actual hours worked, for those on zero hour contracts who have been in post for 12 months.
would do no harm but also won’t achieve a whole lot
Accept and consult to apply this to a wider group of workers
14 Government should examine the effectiveness of the Information and Consultation Regulations in improving employee engagement in the workplace. In particular it should extend the Regulation to include employees and workers and reduce the threshold for implementation from
would do no harm but also won’t achieve
Consult on extending the regulation and reducing the threshold
73
10% to 2% of the workforce making the request.
a whole lot
16 Government should introduce new duties on employers to report (and to bring to the attention of the workforce) certain information on workforce structure. The Government should require companies beyond a certain size to: • Make public their model of employment and use of agency services beyond a certain threshold. • Report on how many requests they have received (and number agreed to) from zero hours contracts workers for fixed hours after a certain period. • Report on how many requests they have received (and number agreed) from agency workers for permanent positions with a hirer after a certain period.
would do no harm but also won’t achieve a whole lot
Monitor the impact of corporate governance reforms, supported by a refreshed Corporate Governance Code and take further action if these reforms do not change behaviour. This could include a ‘People Statement’ and we welcome views on how effective this might be
19 HMRC should take responsibility for enforcing the basic set of core pay rights that apply to all workers – NMW, sick pay and holiday pay for the lowest paid workers.
potential to be good but not enough detail to know
Accept that the state should take responsibility for enforcing these rights for vulnerable workers and consult on how this will work
20 Government should ensure individuals are able to get an authoritative determination of their employment status without paying any fee and at an expedited preliminary hearing.
would do no harm but also won’t
There are currently no fees in the ETs following a recent Supreme Court judgment.
74
achieve a whole lot
If fees are reintroduced we will consult on this.
21 The burden of proof in employment tribunal hearings where status is in dispute should be reversed so that the employer has to prove that the individual is not entitled to the relevant employment rights, not the other way round subject to certain safeguards to discourage vexatious claims.
would do no harm but also won’t achieve a whole lot
Return to this recommendation after an online tool has been developed
24 Government should create an obligation on employment tribunals to consider the use of aggravated breach penalties and costs orders if an employer has already lost an employment status case on broadly comparable facts – punishing those employers who believe they can ignore the law.
would do no harm but also won’t achieve a whole lot
Accept the need for strong punishment for those who ignore the law. Consultation on how to extend the use of sanctions. New proposal put forward to increase level of penalty for aggravated breach
25 Government should allow tribunals to award uplifts in compensation if there are subsequent breaches against workers with the same or materially the same working arrangements.
would do no harm but also won’t achieve a whole lot
Accept the need for strong punishment for those who ignore the law. Consultation on how to extend the use of sanctions.
75
26 The Review believes that the principles underlying the proposed NI reforms in the 2017 spring budget are correct. The level of NI contribution paid by employees and self- employed people should be moved closer to parity while the Government should also address those remaining areas of entitlement – parental leave in particular – where self-employed people lose out.
mixed bag- has good and bad elements
Agree that the small differences in contributory benefits no longer justify the scale of differences in rates of NI contributions, but we have no plans to revisit this issue
43 Government should reform Statutory Sick Pay so that it is explicitly a basic employment right, comparable to the National Minimum Wage, for which all workers are eligible regardless of income from day 1. It should be payable by the employer and should be accrued on length of service, in a similar way to paid holiday currently. Government should ensure that there is good awareness of the right amongst workers and businesses.
mixed bag- has good and bad elements
Work being taken forward as part of Improving Lives: the Future of Work, Health and Disability
44 Those individuals with the relevant qualifying period are already entitled to have their job protected for a period of time when they are away from work for perfectly reasonable reasons, for instance, having a child. A similar approach should be adopted for sick leave with individuals having the right to return to the same or a similar job after a period of prolonged ill health. This right to return should be conditional on engagement with the Fit for Work Service when an assessment has been recommended.
would do no harm but also won’t achieve a whole lot
Work being taken forward as part of Improving Lives: the Future of Work, Health and Disability
15 Government should work with Investors in People, Acas, Trade Unions
Too fluffy
Accept
76
and others with extensive expertise in this area to promote further the development of better employee engagement and workforce relations, especially in sectors with significant levels of casual employment.
for analysis
35 Learning from the failings of Individual Learning Accounts the Government should explore a new approach to learning accounts, perhaps with an initial focus on those with a long working record, but who need to retrain and those in receipt of Universal Credit. The new £40 million Lifelong Learning Fund is a starting point for this and should be developed by bringing together employers, civic society and the education sector.
Too fluffy for analysis
Agree in principle, work being taken forward in other work programmes
36 Government should use its convening power to bring together employers and the education sector to develop a consistent strategic approach to employability and lifelong learning. This should cover formal vocational training, ‘on the job’ learning and development, lifelong learning and informal learning outside work. It could be linked to the longer-term development of life-time digital individual learning records. As part of this, the Government should seek to develop a unified framework of employability skills and encourage stakeholders to use this framework.
Too fluffy for analysis
Agree in principle and will develop a unified framework of employability skills
37 Government should strongly encourage gig platforms to enable individuals to be able to carry their verified approval ratings with them
Too fluffy for analysis
Accept in principle; will monitor changes and assess what
77
when they move from the platform and to share them with third parties.
further action needs to be taken
38 In developing a national careers strategy, the Government should pay particular attention to how those in low paid and atypical work are supported to progress. It should take a well-rounded approach, promoting the role of high-quality work experience and encounters at different education stages.
Too fluffy for analysis
Agree
40 As part of the statutory evaluation of the Right to Request Flexible Working in 2019, Government should consider how further to promote genuine flexibility in the workplace. For example it should consider whether temporary changes to contracts might be allowed, to accommodate flexibility needed for a particular caring requirement. Government should work closely with organisations like Timewise and Working Families to encourage flexible working and initiatives like “happy to talk flexible working” to a wider range of employers.
Too fluffy for analysis
Accept
41 Government should review and, in any event, consolidate in one place guidance on the legislation which protects those who are pregnant or on maternity leave to bring clarity to both employers and employees. In parallel with the range of non-legislative options and the consolidation set out above, the Government should consider further options for legislative intervention. If improvements around
Too fluffy for analysis
Accept
78
leadership, information and advice do not drive the culture change we are seeking, the Government will need to move quickly to more directive measures to prevent pregnancy and maternity discrimination.
42 We recommend that the relevant Government Departments – BEIS, DCLG, DWP and DH – explore ways of supporting and incentivising local authorities, particularly City Regions and combined authorities, to develop integrated approaches to improving health and wellbeing at work.
Too fluffy for analysis
Agree
45 Government should seek to develop a better understanding of what progression at work is and public policy levers influence it. Building on the trials to date, Government should work with external providers to determine what really works in supporting individuals to obtain better quality – and not just more – work. This should not be limited to increasing earnings to a level of self-sufficiency in Universal Credit and should take particular account of the effect of increases in the National Living Wage. It should reflect the opportunities offered by atypical and gig working.
Too fluffy for analysis
Accept- work ongoing as part of our assessment on what constitutes ‘good work’ and trialling in-work support for UC claimants
46 The Government must place equal importance on the quality of work as it does on the quantity by making the Secretary of State for Business, Energy and Industrial Strategy responsible for the quality of work in the British economy.
Too fluffy for analysis
Accept
79
47 The Government should identify a set of metrics against which it will measure success in improving work, reporting annually on the quality of work on offer in the UK.
Too fluffy for analysis
Accept
48 The Department for Business, Energy and Industrial Strategy should take the lead for Government in identifying emerging issues and be the custodian for ensuring market conditions allow for the creation of quality work.
Too fluffy for analysis
Accept
49 The emphasis in the industrial strategy and sector deals on technology and innovation should be linked to the importance of human factors in driving productivity and enabling more rewarding working lives.
Too fluffy for analysis
Accept
50 The LPC should have its remit widened so that it can both make recommendations to Government on what needs to change (including NMW rates) to improve quality of work in the UK as well as work with employers, employees and stakeholders to promote quality work across all regions and sectors.
Too fluffy for analysis
The LPC has reservation about extending its role in this way. The Industrial Strategy Council will be tasked with advising on measuring and assessing quality of work. BEIS will take forward proactive work with sectors to promote quality work, drawing on the advice of the LPC, Acas, the Director of Labour Market
80
Enforcement and others.
51 The LPC should work with experts, from the new Director of Labour Market Enforcement to the Chartered Institute of Personnel and Development, as well as business groups and trade unions and make recommendations to Government if changes to the legal framework are needed to ensure fair and decent work is delivered.
Too fluffy for analysis
The LPC has reservation about extending its role in this way. The Industrial Strategy Council will be tasked with advising on measuring and assessing quality of work. BEIS will take forward proactive work with sectors to promote quality work, drawing on the advice of the LPC, Acas, the Director of Labour Market Enforcement and others.
52 The LPC should work with employers and worker representatives to ensure sector-specific codes of practice and guidance are developed that support the provision of quality work.
Too fluffy for analysis
The LPC has reservation about extending its role in this way. The Industrial Strategy Council will be tasked with advising on measuring and assessing quality of work. BEIS will take forward proactive work with sectors to promote quality work, drawing on the advice of the
81
LPC, Acas, the Director of Labour Market Enforcement and others.
53 The LPC should promote what works in sectors and encourage greater collaboration to improve quality work in low-paying areas.
Too fluffy for analysis
The LPC has reservation about extending its role in this way. The Industrial Strategy Council will be tasked with advising on measuring and assessing quality of work. BEIS will take forward proactive work with sectors to promote quality work, drawing on the advice of the LPC, Acas, the Director of Labour Market Enforcement and others.
