Sintons Employment Law E-Bulletin – Issue 73
- Allay (UK) Ltd v Gehlen UKEAT/0031/20 – employer could not rely on “stale” equality and diversity training as a defence to show it had taken all reasonable steps to prevent harassment.
- Uber BV and others v Aslam and others  UKSC 5 – Supreme Court confirms Uber drivers are workers
- Employers named and shamed by BEIS for failing to pay national minimum wage
Allay (UK) Ltd v Gehlen UKEAT/0031/20 – employer could not rely on “stale” equality and diversity training as a defence to show it had taken all reasonable steps to prevent harassment.
The Employment Appeal Tribunal (“EAT”) upheld an Employment Tribunal’s finding that an employer had failed to take all reasonable steps to avoid an employee being racially harassed by another and could not rely on “stale” equality and diversity training.
Mr Gehlen (the “Claimant”) was employed by Allay (UK) Ltd (the “Respondent”) for 11 months. Following his dismissal the Claimant brought proceedings in the Employment Tribunal for direct race discrimination and harassment related to race. The Employment Tribunal upheld the complaint of harassment related to race and found that racial comments were regularly made to the Claimant. The tribunal also found that despite two managers being aware of the racist comments, they took no action.
The Respondent argued that it had taken all reasonable steps to prevent the harassment. It maintained that it had an equal opportunity policy and an anti-bullying and harassment procedure in place and that staff had undertaken equality and diversity training and bullying and harassment training. However, the EAT concluded that whatever training had taken place was no longer effective as racist comments had regularly been made to the Claimant, which the Respondent characterised as “banter”.
The EAT emphasised that merely having an equal opportunity policy and carrying out “brief and superficial” training is not enough for an employer to escape liability for acts of discrimination carried out by its employees. Employers should ensure they carry out thorough equality and diversity training on a regular basis to avoid it becoming “stale”, and if there is reason to believe that employees have forgotten or haven’t appreciated the training, it should be refreshed.
Uber BV and others v Aslam and others  UKSC 5– Supreme Court confirms Uber drivers are workers
The Supreme Court has confirmed that Uber drivers are workers for the purposes of the Employment Rights Act (“ERA”) 1996, the National Minimum Wage Act (“NMWA”) 1998 and the Working Time Regulations (“WTR”) 1998.
The claimants were private hire vehicle drivers providing their services through the Uber smartphone application (the “Uber app”). They brought claims against their employer, Uber, for failure to pay the minimum wage, and failure to provide paid leave. The respondents asserted that the claimants were not workers and were not afforded protection under the ERA 1996, the NMW 1998 and the WTR 1998.
The Employment Tribunal found that the respondents were workers and that they were working whenever they (a) had the Uber app switched on; (b) were within the territory in which they were authorised to work; and (c) were able and willing to accept trips. These findings were upheld by the Employment Appeal Tribunal and the Court of Appeal.
Uber appealed to the Supreme Court who unanimously dismissed their appeal. The Supreme Court held that the Employment Tribunal was justified in its findings and considered the following factors as part of its judgment:
- Uber sets the fare and so dictates the drivers’ pay;
- the contract terms are dictated by Uber;
- Uber can impose penalties on drivers if they cancel or decline too many trips once logged on to the Uber app;
- Uber exercises significant control over how services are delivered; and
- Uber restricts communications between the driver and passenger.
With approximately 5 million people in the UK currently employed in the gig economy, this case will have wide ranging implications in how workers are defined in the modern and increasingly technology-influenced workplace.
Employers named and shamed by BEIS for failing to pay national minimum wage
On 31 December 2020, the Department for Business, Energy and Industrial Strategy (“BEIS”) published a list of 139 employers who had collectively failed to pay £6.7 million to over 95,000 workers between September 2016 and July 2018. The offending companies range in size from small businesses to large multinationals who employ thousands of people across the UK.
This is the first time the Government has “named and shamed” employers since the scheme was paused in 2018 while the process was reformed. The publication is intended to serve as a warning to employers that the Government will take action against those who fail to pay employees properly. One of the main causes of National Minimum Wage (“NMW”) breaches was where low-paid employees were required to cover work costs, such as paying for uniform, training or parking fees which would take them below the NMW threshold. Some employers also failed to raise employees’ pay following birthdays which should have moved them into a new NMW bracket.
Employers who under pay workers must pay back arrears of wages to workers at current minimum wage rates. Employers also face financial penalties of up to 200% of arrears, capped at £10,000 per worker, which are paid to the Government.
The Government has announced a measured increase in the National Living Wage (“NLW”) and NMW rates, which will come into effect from April. Every worker is entitled to the NMW, no matter their age or profession. The rates will increase as follows:
- NLW: £8.72 to £8.91
- 21-22 Year Old Rate: £8.20 to £8.36
- 18-20 Year Old Rate: £6.45 to £6.56
- 16-17 Year Old Rate: £4.55 to £4.62
- Apprentice Rate: £4.15 to £4.30
- Accommodation Offset: £8.20 to £8.36