Articles | Employment bulletin November 2016

This month we report on a high profile decision regarding the working status of Uber drivers, an equal pay claim affecting staff at Asda and a dispute over breastfeeding at EasyJet. 


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David Clay

David Clay

Uber drivers are workers

Is the “gig economy” model at risk?

Uber drivers are workers


In a recent judgment attracting substantial press attention, an Employment Tribunal (ET) has held that drivers who accept work via the Uber app on their smartphone have worker status. The decision means that Uber drivers will benefit from paid annual leave, the minimum wage and whistle-blower protection.


The case against Uber has been brought by two ‘test claimants’ alleging unlawful deductions from wages and a failure to provide paid leave. These claims rely on them establishing worker status and this issue was addressed at a preliminary hearing. During the hearing Uber insisted that it is a technology platform enabling self-employed drivers to enter into contracts with passengers and denied that it is a provider of transport services.


The ET heard extensive evidence about Uber’s business model. While it was satisfied that there was no overarching contract between Uber and the drivers, it held that when drivers had the app switched on, were within the territory in which they were authorised to work and were able and willing to accept work, they qualified as workers.


The ET rejected as ‘faintly ridiculous’ the notion that Uber in London is a ‘mosaic of 30,000 small businesses linked by a common ‘platform’’. Noting that Uber retains key passenger information, fixes the route and fare for each trip and ‘logs off’ drivers who cancel work, the ET found that the degree of control exercised by Uber was inconsistent with the drivers being in business on their own account.


The ET also poured scorn on the ‘remarkable lengths’ Uber had gone to in an effort to present its drivers as self-employed and dismissed the ‘grimly loyal evidence’ of one of its witnesses with the Shakespearean quip: ‘the lady doth protest too much.’


Uber has confirmed it will appeal the decision. Other businesses operating with similar models in the “gig economy”, i.e. those that utilise skills or services provided by individuals on a freelance or ad hoc basis, will be watching on with interest. Although the decision in Uber’s case is heavily fact-dependent, the growth of the gig economy could be subdued if the businesses involved are forced to engage with costly and complex issues such as sick pay and holiday.


All employers also need to be careful that individuals they have classified as self-employed are not, in reality, employees or workers who could claim employment protection.


Tribunal clears the way for multi-million pound equal pay claim

Asda supermarket staff entitled to compare themselves with depot workers


Tribunal clears the way for multi-million pound equal pay claim


Asda is facing equal pay claims by over 7000 (mostly female) claimants in hourly paid jobs in its retail stores. They allege that the work they do is of equal value to the work undertaken by (mostly male) comparators in the distribution depots, who are paid substantially more. The claims have a reported value, if successful, in excess of £100 million.


At a recent preliminary hearing, the claimants’ right to compare themselves against depot workers was challenged by Asda on a number of grounds, all of which were rejected by the Employment Tribunal (ET).


Under domestic law, an equal pay comparison is only valid if both the claimant and the chosen comparator are both employed by the same employer and work at the same establishment, or if they are both employed by the same employer and work at different establishments but ‘common terms apply’.


Under European law, additional comparisons are allowed if the claimant can demonstrate that she is in the ‘same establishment or service’ as her chosen comparator and that the pay inequality is attributable to a ’single source’. This requires a single body to have responsibility for the alleged pay inequality.


The claimants satisfied the test for comparison under UK law as there were ‘common terms’ between the retail and depot workers, as they were all hourly paid and the structure of the terms was broadly the same. A broad comparison, the ET held, was all that was required.


The claimants could also rely on the wider European provisions, despite the fact that they had not been formally incorporated into UK law. The ET found that there was a single source for the pay inequality, as Asda’s executive board exercised budgetary control for both the stores and depots and so was responsible for the difference in pay.


Previously, equal pay claims have primarily been brought against public sector employers. This recent case demonstrates that private sector employers may now find themselves the target of time consuming and expensive litigation. It is a reminder that comparisons for equal pay claims can be made between employees in different roles, at different establishments and with different working terms. Employers should consider taking advice on how to assess their potential liabilities and how best to protect themselves.

Mothers bring EasyJet down to earth with a bump 

Breastfeeding employees win discrimination case 



Mothers bring EasyJet down to earth with a bump


Currently there are no statutory rights allowing mothers to take time off to breastfeed. However, breastfeeding mothers are protected by a series of other legal rights. These include the right not to suffer indirect discrimination because of sex, to be offered temporary suitable alternative work and to be paid for any suspension on maternity grounds. A recent Employment Tribunal (ET) case has considered whether an employer’s rejection of flexible working requests made by breastfeeding mothers amounted to indirect sex discrimination.


The case concerned two crew members employed by EasyJet. The employees asked not to be rostered for shifts of over eight hours so that they could express breast milk more regularly and thereby reduce their risk of developing health problems. EasyJet rejected the requests on the grounds that it needed to ensure it could keep to its flying schedules and avoid delays and cancellations. The employees argued that EasyJet’s treatment of them was indirect sex discrimination.


The ET found that EasyJet had implemented a policy of requiring crew members to stick to their rostered flying patterns, with no limit on the length of a working day. It held that this policy put the two breastfeeding employees, and women in general, at a particular disadvantage when compared to men, as it required them either to work the rostered hours, which meant ceasing breastfeeding or else suffering increased health risks, or to continue breastfeeding but lose out financially as certain shifts would not be available to them.


The ET also held that EasyJet had not objectively justified its policy as it had failed to give any actual examples of when flexible working arrangements had caused operational difficulties; in fact one of its witnesses conceded that a limited number of bespoke arrangements was unlikely to cause any problems. This was in contrast to medical evidence from GPs supporting the employees’ position on health risks.


This case does serve to highlight the potential legal consequences for employers of failing to accommodate breastfeeding at work adequately. Where a refusal to adjust standard working practices puts a particular group at a disadvantage, an employer must be confident that it can identify a legitimate aim and demonstrate (ideally by reference to reliable evidence) that it is acting proportionately in pursuit of that aim.

Managing sickness absence 

How to defend disability discrimination claims

Managing sickness absence


Employers are entitled to manage the sickness absence of all their employees, but when an employee is absent because of a disability it is important to consider every step carefully. Where an employer treats a disabled employee unfavourably because of something arising in consequence of their disability, the employee will have a claim for discrimination arising from disability unless the employer can justify the treatment.


A recent case in the Employment Appeal Tribunal (EAT) concerned Mr Buchanan, a police officer who developed post traumatic stress disorder after a motorcycle accident. After eight months of absence, the Police began to manage Mr Buchanan under its detailed three-stage absence process. Mr Buchanan’s disability prevented him from returning to work by the dates specified in that process and as a result he was moved to stage 2 and issued with ‘improvement notices’. Mr Buchanan brought a claim for discrimination arising from disability.


The key question was one of justification. The EAT held that it was not sufficient for the Police to show that its absence management process was in some way generally justified. Instead it was required to go further and show that each specific application of the process to Mr Buchanan was justified. The EAT returned the case to an employment tribunal to consider the question of justification in further detail based on the particular facts.


Employers should note that justifying discrimination arising from disability differs from justifying indirect discrimination (where the focus would be much more on whether the employer’s policy itself was justified). Employees will often bring these two claims at the same time, so employers must be ready to justify both their policies and procedures and their implementation in each case.


In practice, employers will always need to demonstrate a degree of flexibility in their management of disabled employees on long-term sickness absence. Rather than issuing warnings for absence or imposing return dates based on standard policy wording, employers are likely to improve their legal position by obtaining medical evidence and considering whether there are any reasonable adjustments which would help the employee to return to work.