Welcome to our Winter Employment Law Update which provides an update on the following areas:
Citysprint – bicycle couriers are workers
Following in the trail of the case brought by two Uber drivers, a recent case has found that a bicycle courier is a “worker” of Citysprint.
The contractual documents referred to the courier as a self-employed contractor but the Employment Tribunal found that this did not reflect the day-to-day reality of the relationship.
The reality was that the courier was integrated into Citysprint’s business. She was expected to work when she said that she would; she was instructed to wear a uniform and smile; she was given direction during her time on her circuit; and she was told how much she would be paid and when.
As a result, the courier succeeded in her claim for holiday pay – holiday pay would not have been due if she were self-employed.
This is another reminder to employers that the mere fact of classifying someone as self-employed does not mean that an Employment Tribunal will necessarily agree.
Employers who fail to recognise workers when they should do, risk storing up claims for unpaid holiday and possible breach of the National Minimum Wage rates, amongst other claims. This could be financially damaging for an employer where it has failed to recognise the rights of a large proportion of the workforce and it is faced with multiple claims.
Working time – rest breaks
In accordance with the Working Time Regulations 1998, workers are entitled to a 20 minute rest break if they work more than six hours per day.
A recent court decision has held that workers can claim that they have been denied a rest break even where they have not asked for one.
The case concerned a worker who had been contracted to work an eight and a half hour shift which included a half hour rest break for lunch. He was subsequently told that he would, instead, work for eight hours without a break and then leave early.
The worker made a claim that he had been refused a rest break. The Employment Appeal Tribunal decided that the employer had a duty to give the worker the opportunity to take a rest break. If the employer failed to put into place working arrangements to allow the taking of 20 minute rest breaks, as in this case, this would be a refusal of the entitlement.
A successful complaint will result in the Tribunal making a declaration to this effect and it may also award compensation against the employer.
Settlement agreements – mental capacity required
The most usual way of settling a claim before it reaches the Employment Tribunal is by a settlement agreement. A number of conditions must be met for such an agreement to validly settle claims, including the requirement for the employee to receive independent legal advice about the terms and effect of the agreement.
The Employment Appeal Tribunal was asked to consider whether a Tribunal had jurisdiction to set aside a settlement agreement as invalid because of the lack of mental capacity of the employee. The Employment Appeal Tribunal found that the Tribunal was entitled to set aside a settlement agreement.
Employers should therefore tread carefully before entering into a settlement agreement where they have doubts about the employee’s state of mind; otherwise employers may pay over monies under a settlement agreement but still find that they could be sued.
This Bulletin is not intended to provide advice.