Lawyer Monthly Magazine - June 2019 Edition

worker. For example, freedom from paying tax and national insurance, administering sick pay or maternity/ paternity, shared parental leave, pensions, working time regulations (etc.) or unfair dismissal or redundancy obligations. The easiest way to do this is to set up a self- employed or consultancy agreement, which is almost entirely governed by its own terms. But there is a down-side. You can’t exercise the same control. Self-employed contracts are task orientated: you define the service you want provided and the self- employed service provider determines how it is done, and controls every substantial aspect of the management and delivery, and does not have to deliver it personally. However, some job specifications are not suited to this and all too often, employers try to have their cake and eat it; they try to retain control yet free themselves of the burden of the regulations covering employees and workers. Pimlico Plumbers and the Uber cases are examples of this. Are plumbers who have to comply with performance requirements and management directions self- employed? The management, in effect, exercises a real but not total control. Similarly, cab drivers, who may have a certain freedom in the performance of their role, are ultimately subject to the minimums. The problems come when the contract is an elaborate construct with complex provisions for working hours and remuneration, such as zero hour contracts, or complex calculations for base pay, bonuses, commissions and overtime. This is furthered if there are no written terms and conditions at all, or they are varied by other policy documents or the service agreement purports to be a self-employed arrangement for the provision of services for reward. This results in the entire status of the service provider’s status being in question, giving rise to the Uber line of cases and Pimlico Plumbing. Is the service provider self-employed, a worker or employed? Each can have different consequences with respect to the rights and obligations of the employee and the control of the employer over them. From this, how can employers use different types of legal structures and ambiguity in the wording of terms and to their advantage? Many employers try to gain economic advantage by freeing themselves of statutory burdens to an employee or a In your experience, can you share where employees often raise concerns regarding their employment contract? The core issue that concerns most workers is job security. Most workers want control over continuity and reward. Some have specific issues; regarding the Equality Act discrimination, harassment or remuneration, etc. Employees question their contract terms when signing them because, other than remuneration, they rarely have real bargaining power, unless they have a unique, highly sought after skill set. They are in their honeymoon state of mind: they are too pleased to get the job to criticize the terms of entry and reward. They raise them usually after being terminated, or when they realise they have been disadvantaged with regard to employment rights or have concerns about the fairness of termination or post- termination restrictions. When can ambiguity arise as to terms and conditions, both in terms of the nature of the contractual terms and the status of the employee when regarding employee’s rights and expectations at their workplace? S1 of the Employment Rights Act 1996, requires employers to serve written terms and conditions of employment within two months of the contract commencement. If it is a compliant employment contract, these terms should not be ambiguous. Many contractual provisions, such as holidays, notice provisions and salary have statutory CONTRACTUAL ARRANGEMENTS Contractual Abuse: What Can Employees Learn from Uber’s Mistakes? This month, we are interviewing Paul Stevens who sheds light into contractual abuse in employment law. With over 25 years of experience, he touches on where employees often raise concern regarding their employment contract; what should employees be aware of and how should they handle the situation if they think their rights have been abused? Touching on Uber’s tribunal, Paul expands below. JUN 2019 24 Expert Insight www. lawyer-monthly .com "If you want to avoid complex and costly proceedings, be honest about what your goals are when taking on service providers."