The recent stream of high profile cases dealing with worker status in the gig economy have considered whether individuals can be considered workers, as opposed to self-employed contractors, against the backdrop of claims for monetary rights and benefits such as the national minimum wage and holiday pay.
Recent Discrimination Cases
However, two new proceedings reported this week will consider the question of worker status in the face of claims of discrimination in the workplace.
In the first of these cases, a transgender woman has brought the first LGBT+ discrimination claim in the gig economy with the support of the Independent Workers Union of Great Britain. Hayley Stanley, who worked as a van driver for Gnewt Cargo between May 2014 and January 2018, claims she faced bullying and harassment on account of her gender reassignment, a protected characteristic under the Equality Act 2010. It is claimed that concerns raised to management within Gnewt were dismissed on the basis that Ms Stanley was an independent contractor and was therefore not protected against discrimination in the way that an employee or worker would be.
Also this week, a group of 27 art educators who worked at the National Gallery in London have lodged a claim for unfair dismissal on the basis of age and sex discrimination, arguing that they should be classified as employees rather than freelancers. The claim is thought to be the first of its kind against a public sector institution.
These cases undoubtedly indicate a new direction for the ongoing gig economy debate.
Firstly, the National Gallery case demonstrates the potential for claims to arise in workplaces which may not typically be associated with the gig economy. This, and the Pimlico Plumbers case, show that worker status claims can arise in a variety of workplaces and certainly extend beyond the typical gig economy models of delivery drivers, couriers and taxi drivers. Recently, the Employment Tribunal (and appeal courts) has consistently found in favour of claimants in their assertions that they ought to be treated as workers, as opposed to self-employed contractors. It is therefore critical for organisations of varying sizes and models to consider whether those who work for them under the auspice of self-employment could, in actual fact, be considered to be workers or employees.
Furthermore, both cases highlight the scope for discrimination claims in this ever-growing sector. Whilst considering whether any individuals could be classified as workers or employees, organisations should note that the protections of The Equality Act also extend to a third category of worker. Where a self-employed individual is contractually obliged to perform work personally¸ they too, will benefit from the protections of The Equality Act.
The scope for a raft of new cases in relation to discrimination in this sector is very likely given the publicity which such cases receive. Respondents and supporters of the gig economy have typically argued that those engaged in this sort of work are content to trade certain rights and benefits for the flexibility which it offers. Whilst this may be the case, it seems far less certain that individuals would be willing to suffer discrimination, harassment and bullying for the sake of enhanced flexibility. Additionally, in cases where establishing employment status may be difficult (therefore preventing an individual from pursuing a claim of unfair dismissal), the right to proceed with a discrimination claim under the Equality Act is likely to open the door to an alternative significant claim which has as its remedy a right to recover similar levels of compensation as a tribunal could award in a successful unfair dismissal claim. This will create the potential for further risks to businesses who engage casual workers.
Those engaged in the gig economy ought, therefore, to consider whether the anti-discrimination and equality provisions which they have in place are fit for purpose for all categories of staff. As a rule of thumb, it is advisable that “employers” take all allegations of discrimination seriously from all categories of worker, including those who they consider to be self-employed.
Crucially, any discrimination claim brought against an organisation could have significant knock on effects. If an individual is found to have employee or worker status in the course of a discrimination claim, this could open the “employer” up to a far wider claim from other individuals engaged in the same role who seek to receive the monetary benefits associated with their established worker or employee status.
Contact MSHB Employment Lawyers Glasgow Today
It is likely that these developments are just examples of many upcoming changes to the landscape of the gig economy. Business owners who operate a non-standard model of “employment” and individuals who are unsure about their status as a self-employed contractor are invited to get in touch with a member of our employment team.