It’s easy to pick holes in any substantial piece of work – which is great news for people like me. There is, therefore, plenty in the Taylor Review ‘Good Work’ Report (as it now seems to be called) that I intend to spend much of the summer picking holes in and whinging about (I mean – ‘dependent contractors’ – honestly!).
There is also much in the report that will be of more interest to other people than to me. There are graphs. There is discussion of National Insurance Contributions. There is plenty of stuff about promoting and sharing good practice that I frankly skimmed through. I don’t dismiss these things – but other people can write about them.
What I wanted to see from the review was substantive proposals for actual amendments in employment law – and in all fairness there are plenty of them. Some are a bad idea and some would make very little difference to anyone. But some of the proposals are really progressive and should be welcomed. We can argue about which is which later, but for now here are the proposals on employment law that I take from the report.
- Keep the distinction between employees and workers, but rename workers who are not employees ‘dependent contractors’ (Page 35)
- Amend the legislation defining employees and workers so that case law principles are reflected in the legislation itself – possibly with supporting secondary legislation (page 35)
- Remove the requirement for workers (I refuse to use the ‘dependent contractors’ term) to have a contract to perform work personally (page 36)
- Place more emphasis on control in the definition of worker status (page 36)
- Consider taking account of the subtly different definitions of ‘worker’ in the legislation
- Retain need for personal service in employment contract
- Amend the law on the National Minimum Wage to make it clear that gig-economy workers allocated for through an app are undertaking a form of output work and will not have to be paid NMW for each hour logged on when there is no work available (Page 38)
- Treat workers treated as ’employed’ for the purposes of tax status (page 38)
- Extend the right to a written statement of terms to workers as well as employees (page 39)
- Require written statements to be given on day one of employment (page 39)
- Extend written statement of terms to include description of statutory rights (page 39)
- Give a stand alone right to compensation if employer has not given written statement (page 39)
- Consider increasing the rate of the National Minimum Wage for hours that are not guaranteed by the employer (page 44)
- Preserve continuity of employment where any gap in employment is less than one month, rather than one week (page 45)
- Improve the information to be given to agency workers (page 46)
- increase the reference period for calculating holiday pay (where pay is variable) from 12 weeks to 52 weeks. (page 47)
- Allow holiday pay to be paid on a ‘rolled up basis’ (page 47)
- Give agency workers the right to request a direct contract with the end user after 12 months on an assignment (page 48)
- Give those on zero-hours contracts the right to request guaranteed hours after 12 months (page 48)
- Require employers to set up Information and Consultation arrangements when requested by just 2% of the workforce rather than the current 10% (Page 53)
- Require larger employers to report on their overall workforce structure – including requests from zero-hours workers for regular hours (page 55)
- Abolish the ‘Swedish Derogation’ which allows agencies to avoid matching end user pay by employing agency workers in a way that allows for pay between assignments (Page 59)
- Give HMRC enforcement powers in respect of sick pay and holiday pay as well as minimum wage issues (page 59)
- Allow claimants to being a claim to ET (without fee) to determine employment status as a preliminary issue prior to substantive claim (page 62)
- Place burden on employer in ET claim to prove that claimant is not an employee / worker (page 62)
- Give BEIS the power to pursue the enforcement of Tribunal awards – i.e. pursuing the actual award, not just imposing a penalty for non-compliance (page 63)
- Allow ET to impose aggravated penalties on employer who does not apply ET ruling on employment status to similar groups of workers (page 63)
- Allow uplifts in compensation where employer commits subsequent breaches of employment law based on similar working arrangements to those already dealt with by ET (page 64)
- Consider allowing flexible working requests to cover temporary as well as permanent changes to contracts (page 95)
- Reform SSP to make it a proper employument right available to all workers – accrued in line with length of service (page 99)
- Give individuals a right to return to work following long-term sickness absence (page 99)
Some of these proposals are ‘ready to go’ and others would obviously require a great deal of work to turn them into something specific. For example, it’s all very well saying we need a clearer definition of who is an employee and who is a worker – but what would those definitions actually look like?
I plan to look at a number of these proposals in more detail over the summer and will, as ever, be blogging and Tweeting my thoughts. But before I start whinging and carping (and I will be doing a lot of that), it is worth acknowledging that this Report is a more substantial piece of work than the various leaks over recent days suggested. There is a lot of substance here that will form the framework of the employment law debate for the foreseeable future.