Will ‘naming and shaming’ improve worker’s rights?

Workers’ rights have been in the news recently in connection with the ‘gig economy’ litigation involving Uber, Deliveroo, Pimlico Plumbers, Addison Lee and a host of other businesses whose model is to provide a digital platform to connect service providers – be they a taxi driver, a take away courier or a plumber – with their end customer. Those cases have been concerned with whether the individual service provider is self-employed or in fact a worker and entitled to minimum Employment rights. Many of the best employment law solicitors in London have been watching the litigation closely as it unfolds. In the Pimlico Plumbers case, the first to reach the Supreme Court, Mr Gary Smith has had his argument that he was a ‘worker’ upheld – but how does a worker then go about asserting their Employment rights?

The distinction between workers and employees is an important one. It involves an analysis of the degree of ‘control’ the employer has to direct the individual in their day to day work. All employees are workers, but not all workers are employees.

employees benefit from the full range of Employment rights. On top of rights relating to minimum pay and holidays, rest breaks etc, an employee should benefit from statutory sick pay, maternity/paternity/adoptive/shared parental leave and pay and other statutory protections including protection from unfair dismissal and redundancy.

Workers have fewer rights but are still entitled to some key Employment rights, including the National Minimum Wage/National Living wage, statutory holiday and rest breaks and the right not to be treated less favourably if they work part time. Workers are also entitled to be protected from

discrimination and for whistleblowing.

Knowing you have these rights is one thing, enforcing them is quite another. As UK employment lawyers regularly advising on employment law for employees, we are well aware of the barriers that employees and workers face trying to assert their rights in the face of an employer who is unwilling to listen. For some time, the Employment Tribunal fees acted as a real barrier to employees and workers. Although there was a noticeable increase in claims following the Supreme Court’s declaration that Employment Tribunal fees were unlawful in July 2017, this doesn’t get over the fact that for many, the thought of challenging an employer in court is daunting.

Earlier this year, the government’s workers’ rights ‘tsar’, Sir David Metcalf, suggested that companies at the top of supply chains should be ‘named and shamed’ for working with suppliers that failed to comply with statutory Employment rights such as paying workers the minimum wage or holiday pay. His recommendations included making big ‘brand’ employers such as chain restaurants or retailers should be jointly responsible along with their suppliers for any breaches of Employment legislation the suppliers committed. This would essentially increase the amount of due diligence organisations at the top of long and often complex supply chains would have to undertake and encourage them to work with suppliers who act more responsibly towards their workforce. The idea would be that businesses would be given 3 months to address Employment issues within their supply chain. If improvements were not made, the business would face being publicly named – presumably with the attendant damage to the brand.

Many, including top employment law firms in London, feel that while this is a step in the right direction, it still doesn’t go far enough. They feel that only legislation imposing penalties, as well as joint responsibility, will provide the necessary incentive to big brands at the head of supply chains to really get their houses in order. On the other hand, the CBI has suggested that joint liability would encourage brands to simply terminate their relationships with non-compliant businesses rather than encouraging them to improve workplace practices.

The report produced by Sir David included a number of recommendations including licensing of nail bars and car washes, reportedly most likely to mistreat workers, and reiterated a call to introduce a power to embargo ‘hot good’ – those made in factories where low pay is the norm. He has also recommended an increase in fines for those flouting the minimum wage legislation. He favours linking fines to company turnover.