Latest developments in employment law November 2023
November has been a busy month for employment law. Our Head of Employment Daniel Kindell explains some of the latest developments.
Minimum service levels
Firstly, as you’ll read in this newsletter, the government announced that regulations setting out minimum service levels for rail, ambulance and border security staff during strike action will be laid before parliament. It also published its response to a consultation on a statutory Code of Practice on the reasonable steps a union must take to comply with minimum service level obligations. Simultaneously, we then saw the announcement of a consultation on removing the prohibition on engaging agency workers to cover the work of those taking part in industrial action. So industrial action has certainly been flavour of the month!
Changes to holiday pay, TUPE and working time
We then had notice of a draft statutory instrument containing amendments to the law on holiday pay, TUPE and working time likely to come into force on 1 January 2024. These amendments include making rolled up holiday pay lawful for part-year workers and those who work irregular hours. They legislate for the carry-over of all statutory holiday when it can’t be taken due to family-related leave. It allows workers to carry over 4 weeks’ holiday (for a maximum of 18 months) where a worker is unable to take leave due to sickness and allowing 4 weeks’ carry over where a worker wasn’t afforded an opportunity to take the leave (e.g. in false self-employment cases) and wasn’t encouraged to take leave or warned that it will be lost if not taken.
It also legislates for how to calculate holiday pay where there are extra payments such as commission or overtime payments, as well as removing certain working time record keeping requirements. Changes to TUPE include allowing small businesses (with under 50 employees) to inform and consult employees directly about a TUPE transfer, in the absence of existing representatives, with a similar rule applying to businesses of any size who transfer under 10 employees to a new undertaking.
The government then published draft legislation to amend the Equality Act 2010 to codify certain EU-derived discrimination protections which would otherwise have disappeared at the end of the year due to Brexit.
Deliveroo judgement
This was all then topped off with a landmark judgment from the Supreme Court that held that Deliveroo riders are not workers and can’t form a collective bargaining unit! In the case of Independent Workers Union of Great Britain (IWGB) v Central Arbitration Committee, the Supreme Court held that the CAC was correct to refuse the union’s application for recognition, because the Deliveroo riders weren’t required to provide personal service (they had unfettered rights to use substitutes), so were not “workers” within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992.
IWGB tried to assert that this was a breach of Article 11 of the European Convention on Human Rights as that Article protects the right to freedom or association and to form and join a trade union. However, that right only exists within the European concept of an employment relationship. As the riders were not in an employment relationship, the Article 11 provisions didn’t apply.
This case will be of great interest to those working in the gig-economy as it includes not only an interesting discussion on Article 11 and collective bargaining rights but also an analysis of the employment status of Deliveroo riders and the plethora of factors that become relevant when assessing that status.
We can only hope that December is a somewhat quieter month — there is an awful lot of law for us all to get our heads around before the start of the New Year!
