Recommended Changes to Employment Law – The Taylor Review
The long-awaited Taylor Review of modern employment practices emerged yesterday, and was introduced at a press conference hosted by Prime Minister Theresa May, who “promised to look at its recommendations, very carefully and seriously”.
The review calls for a “significant shift in the quality of work in the UK economy” and makes a significant number of recommendations for how employment law could adapt to support this.
The key recommendations are highlighted below:
- Employment Legislation should be updated to clarify exactly what the legal tests are for different types of worker status, rather than relying on case law. The report “Employment statuses should also be distinct and not open to as much interpretation.”
- The current, three-tier approach should be retained but “worker” status should be renamed “dependent contractor” status. However, if someone is deemed “employed” for tax purposes by a tribunal, that decision is binding for employment law purposes as well.
- The requirement for someone to perform work “personally” for the employer should no longer be a barrier to them gaining “dependent contractor” (or currently “worker”)
- “Control” that is over “work to be carried out”, should be more clearly defined in legislation, and not left as it currently stands as simply “supervision of day-to-day activities”.
- The Government should develop an online tool, similar to HMRC’s Employment Status Indicator tool, to provide individuals with an indication of their employment status.
Terms of Employment
- It should become a statutory requirement for employees and dependent contractors to receive a written statement of employment particulars on day one of their job, including the rights they are entitled to, how these are calculated and how they are paid.
- Employees or dependent contractors should be able to bring a claim for compensation against an employer who fails to provide a written statement.
- Zero hours contracts should not be banned, but workers on these arrangements should have a right to request a contract that guarantees their hours after they have been in post for 12 months.
- The Government should ask the Low Pay Commission to consider introducing a higher national minimum wage (NMW) rate for hours that are not guaranteed as part of a contract. For example, a worker who is guaranteed six hours per week but is regularly asked to do more, could be paid the NMW for the first six hours and receive a premium for any hours beyond that.
- The Government could look at ways in which workers can negotiate more guaranteed hours, for example through voluntary collective agreements.
- The 12-week reference period for holiday pay should be made fairer for individuals who have peaks and troughs in work, and should be extended to 52 weeks.
- Workers should also have greater choice as to how they receive annual leave entitlement, with the option to receive ‘rolled-up’ holiday pay in real time. For example to a worker on the national living wage of £7.50 an hour, if their annual leave entitlement is rolled up (cashed up instead of) this would mean their actual remuneration was £8.41 an hour.
- Where certain employment rights demand a period of continuous employment before an individual is eligible (such as 26 weeks for flexible working), it should be made easier for dependent contractors or gig workers to demonstrate continuous service. The current legislation that allows for a “temporary cessation of work” between assignments of a week should be extended to a month before the period of continuous employment is affected.
- Statutory sick pay (SSP) should become a basic employment right comparable to the national minimum wage and all workers should be eligible for it from day one. It should be accrued in the same way as holiday pay.
- Those returning from time off for sickness should receive the same protections as those returning from maternity, providing they have engaged with the Fit for Work service.
- As part of its review of the right to request flexible working in 2019, the Government should consider whether individuals should be able to request temporary rather than permanent changes to contracts, for example for short term address of a particular caring requirement.
- Agency workers should have a right to request a direct employment contract with the hirer once they have worked there for 12 months.
- The use of ‘Swedish derogation’ contracts, which allow agency workers to opt out of receiving the same pay as a permanent member of staff doing the same job after 12 weeks in return for receiving some payment between contracts, should be outlawed.
- Information and consultation regulations should be reviewed and be extended to include all types of worker. The threshold for implementation should be reduced from 10% to 2% of the workforce making a request.
- The Government should require companies beyond a certain size to make public their model of employment, for example their use of agency services or proportion of workers on zero hours contracts.
Tribunals and Enforcement
- Individuals should be able to determine their working status without having to resort to paying for a tribunal hearing. Further the burden of proof of what status the individual holds should be on the employer, rather than the individual.
- Organisations that fail to pay tribunal awards should face an extra fee or some form of enforcement action, with the potential to “name and shame”.
- Tribunals should be obliged to consider the use of aggravated breach penalties and cost orders where an employer has repeatedly flouted law, particularly where they know they are already breaking the law because of a “broadly comparable judgement” against them. Tribunals could also award higher compensation if there are subsequent breaches against workers with the same arrangements.
Tax and National Insurance
- National insurance contributions for employed and self-employed workers should be moved “closer to parity”.
- If NI contributions from the self-employed are raised, then there should be a accompanying improvement in pension provisions and family-friendly rights for these individuals.
- The Government’s “Making Tax Digital” overhaul of the tax system should ensure that technology supports the self-employed and/or “gig” workers (paid per job workers) to calculate and pay their tax correctly.
- Cash-in-hand payments for jobs should be phased out and replaced with electronic transactions via platforms such as PayPal (to be honest I am not sure how this would be ever be policed but nice idea)
- The Government should work with employers in certain sectors that employ a high proportion of gig workers to see how they can benefit from the apprenticeship levy.
- The use of ‘digital badges’ or other forms of accreditation could be more widely used for workers in the gig economy to carry verified approval ratings with them if they work for someone else i.e. work references for people who are not consistently employed