After losing it’s lengthy Supreme Court battle just less than one month ago, Uber have announced it will give its 70,000 UK drivers a guaranteed minimum wage, holiday pay and pensions.
Last month we confirmed Uber’s lengthy legal battle to overturn the 2016 Employment Tribunal (ET) decision had finally came to an end when the Supreme Court unanimously ruled against them and concluded drivers should be classed as workers, not independent third-party contractors – https://employmentlawservices.com/uber-loses-landmark-supreme-court-battle-over-workers-rights/
In the weeks following the Supreme Court’s ruling, Uber have carefully considered their position and announced yesterday that it will give its 70,000 UK drivers guaranteed minimum wage, holiday pay and pensions. The taxi company confirmed that all drivers can expect to earn at least the National Living Wage for over-25s, irrespective of age, after accepting a trip request and after expenses, that they will be entitled to paid holiday based on 12.07% of their earnings, which will be paid on a fortnightly basis, that they will also be enrolled into a pension plan automatically, with contributions from Uber, that they will continue to receive free insurance in case of sickness or injury as well as parental payments, which have been in place for all drivers since 2018 and retain the freedom to choose if, when and where they drive.
It will be interesting to see if Uber will extend this decision to its food delivery business, Uber Eats, which remains unaffected by this decision.
The Supreme Court ruling in this case was always going to have far-reaching implications for millions of people working in the gig economy and the companies that employee them, but only time will tell whether other employers operating in the gig economy will follow Uber’s lead.
In his Spring 2021 Budget, the Chancellor announced that the Coronavirus Job Retention Scheme (CJRS) will be extended for a further five months from May until the end of September 2021.
Chancellor Rishi Sunak said the scheme – which pays 80% of employees’ wages for the hours they cannot work in the pandemic – would help millions through “the challenging months ahead”.
Key Highlights Announced by the Chancellor
Employees will continue to receive 80% of their current salary for hours not worked.
There will be no employer contributions beyond National Insurance contributions (NICs) and pensions required in April, May and June.
From July, the government will introduce an employer contribution towards the cost of unworked hours. This will be 10% in July and 20% in August and September.
For periods ending on or before 30 April 2021, employers can claim for employees if they were employed on or before 30 October 2020, as long as they have made a PAYE Real Time Information (RTI) submission to HMRC between 20 March 2020 and 30 October 2020. This may differ if employees were made redundant, or they stopped working for the employer on or after 23 September 2020 and were then re-employed by the employer.
For periods on or after 1 May 2021, employers can claim for employees if they were employed on 2 March 2021, as long as they have made a PAYE Real Time Information (RTI) submission to HMRC between 20 March 2020 and 2 March 2021.
Do employers need to enter into fresh furlough agreements with employees from 1 May 2021?
As a result of the CJRS being extended to 30 September 2021, there will be several potential scenarios for Employers to consider, including:
An employee who was already furloughed before 30 April 2021 under an agreement without an end date.
An employee who was not already furloughed under the CJRS.
An employee who was already furloughed before 30 April 2021 under an agreement without an end date
Where an employee was furloughed under a written furlough agreement entered into before 31 October 2020 which remains in force, it may be possible for the previous furlough arrangement to simply continue after that date.
The requirements of a valid furlough agreement under the fifth Treasury direction are the same as previously under the third Treasury direction (see paragraph 7.1, fifth Treasury direction) and at this time there is no requirement for the agreement to be entered into on or after 1 November 2020. The only requirement is that it is entered into before the period to which the claim relates (paragraph 7(c)(i)). Assuming the eligible employer and qualifying employee requirements continue to be met (which also remain substantially the same under the fifth Treasury direction, see paragraphs 4 and 6), it may be possible for furlough to continue under a previous furlough agreement.
However, it is likely that some amendment will be required to most furlough agreements in order for the arrangement to continue after 30 April 2021.
An employee who was not already furloughed under the CJRS
As the employee was not furloughed previously, the employer should enter into a detailed furlough agreement with the employee and the employee should be asked to sign and return the agreement to confirm their agreement to be furloughed in accordance with the terms of the CJRS. This could be done electronically.
The agreement should be made before the CJRS period to which it relates starts.
What About Self-Employed Workers?
The Chancellor announced that the Self-Employment Income Support Scheme (SEISS) is also being extended with a fourth grant covering the period February to April 2021 and a fifth and final grant covering May to September 2021.
There will be temporary continuation of tax exemptions for COVID-19 tests and home office expenses, and of the Statutory Sick Pay (SSP) Rebate Scheme while sickness levels remain high.
In a recent survey 23% of employers said they plan to require staff to be vaccinated, but can employers impose a mandatory vaccination requirement on their employees?
The Law on Mandatory Vaccinations
Although current legislation (the Public Health (Control of Disease) Act 1984 and the Coronavirus Act 2020), already gives the UK Government and devolved Administrations the power to make regulations to prevent, protect against, control or provide a public health response to the incidence or spread of infection or contamination, there is no legislation to mandate COVID-19 vaccinations and the Health Secretary, Matt Hancock, has stated that the government is not considering introducing legislation to make vaccinations compulsory.
So, Can Employers Require Employees to be Vaccinated?
In the absence of it becoming a legal requirement an employer cannot force an employee to be vaccinated without their consent. Vaccination without consent could amount to the criminal offences of assault.
An employer considering imposing a mandatory vaccination requirement, or treating employees or job applicants differently because of their vaccination status, should consider the following:
Vaccination is not suitable for everyone.
Requiring an employee to be vaccinated without their consent as a condition to providing work could amount to a repudiatory breach of contract, entitling them to claim constructive dismissal.
There are potential reasons where a mandatory requirement to be vaccinated could be indirectly discriminatory against certain protected characteristics and a breach of Article 8 of the European Convention on Human Rights.
Currently, private vaccination is not available. All individuals must wait their turn, in order of priority, to be offered vaccination. Allowing only vaccinated employees to return to the workplace could potentially lead to indirect or direct age discrimination claims by younger employees, although both direct and indirect age discrimination can be justified.
A vaccination requirement may be difficult to justify on health and safety grounds. Although vaccination reduces the chance of the vaccinated individual becoming ill, the extent to which vaccination reduces transmission is still under review. Although the Guide for healthcare workers states that it is likely that vaccinated healthcare workers will be less likely to pass on infection as the viral shedding period will be shortened. Further, it is not yet known how long protection from vaccination will last. The current advice is clear that vaccination is not a substitute for workplace COVID-secure measures which must continue to be complied with.
Imposing a mandatory vacation requirement could result in negative publicity for the employer which could have a detrimental impact on business profitability, employee retention and recruitment.
There is a very small risk that vaccination could have long-term adverse side effects for some individuals. A cautious employer may also be concerned about the risk of an employee having an adverse reaction to the vaccine. An employee who was compelled to obtain the vaccine and who suffers an adverse reaction, may attempt to bring personal injury proceedings against the employer. For information on potential waivers in this respect.
Consultation with workplace and health and safety representatives, and with trade unions, is likely to be required.
There are data protection implications of requiring employees to provide information on their vaccination status, verifying its accuracy, and retaining that data.
In theory, an employer could decide to prevent unvaccinated employees from entering the workplace or restrict their duties. This could in turn adversely impact an unvaccinated employee’s pay. Preventing an employee from coming to work risks leaving the employer in breach of contract and could give rise to claims of constructive dismissal if the employee resigns in response or is dismissed.
The Acas guidance advises that employers should support staff in getting the vaccine but cannot force them to be vaccinated. However, it acknowledges that it may be necessary to make vaccination mandatory where it is necessary for someone to do their job, for example where they travel overseas and need to be vaccinated.
Alternatives to Mandatory Vaccination
Employers considering alternatives to mandatory vaccination may prefer to encourage voluntary vaccination within their workforces as an alternative to mandatory vaccinations. Taking advantage of the information currently available on the potential advantages and disadvantages of vaccination, Employers could communicate this to staff to assist them in making an informed decision. Doing so would be in accordance with an employers’ duty of care and obligation to take reasonable steps to provide a safe workplace and safe system of work.
Additional alternative measures employers should consider include:
regular testing for frontline staff (only available in England – https://www.gov.uk/get-workplace-coronavirus-tests);
regular health and safety reviews to ensure that the employer is up to date with, and properly implementing, the COVID-secure guidelines for its particular industry.
allowing employees to work from home, where possible; or
temporarily changing employee roles or responsibilities to minimise the workplace risk as far as possible.
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