Exploring Worker Rights and Legal Interpretations

Exploring Worker Rights and Legal Interpretations Date: February 2024 Section 296(1) materially provides: - (1) In this Act, worker means an individual who works, or normally works or seeks to work • (a) Under a contract of employment, or • (b) Under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is - • not a professional client of his, or • (c) [...] (2) In this Act employer, in relation to a worker, means a person for whom one or more workers work, or have worked or normally work or seek to work. Freedom Of Assembly And Association - 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. - 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State. Demir and Baykara v Turkey - 154 Consequently, the Court considers that, having regard to the developments in labor law, both international and national, and to the practice of contracting states in such matters, the right to bargain collectively with the employer has, in principle, become one of the essential elements of the "right to form and to join trade unions for the protection of [one's] interests" set forth in art.11 of the Convention, it being understood that states remain free to organize their system so as, if appropriate, to grant special status to representative trade unions. Vining v London Borough of Wandsworth: - 64. If, accordingly, the rights in question fall within the scope of article 11 the UK is under a positive obligation to secure the effective enjoyment of these rights. That does not mean that it is under an obligation to ensure that they are available to all employees in all circumstances, but it does mean that where a legislative scheme is in place it must strike a fair balance between the competing interests and any provision of that scheme which restricts its availability to particular classes of workers requires to be justified, albeit that the state is recognized to have a wide margin of appreciation. ILO (198 extracts from preamble Considering that there is protection offered by national laws and regulations and collect agreements which are linked to the existence of an employment relationship between an employer and an employee, and Considering that employment or labor law seeks, among other things, to address what can be an unequal bargaining position between parties to an employment relationship, and Considering that the protection of workers is at the heart of the mandate of the International Labor Organization, and in accordance with principles set out in the ILO Declaration on Fundamental Principles and Rights at Work, 1998, and the Decent Work Agenda, and Noting that situations exist where contractual arrangements can have the effect of depriving workers of the protection they are due, and Recognizing that national policy should be the result of consultation with the social partners and should provide guidance to the parties concerned in the workplace, ILO R198 - 11. For the purpose of facilitating the determination of the existence of employment relationship, Members should, within the framework of the national policy referred to in this Recommendation, consider the possibility of the following: • (a) allowing a broad range of means for determining the existence of an employment relationship; • (b) providing for a legal presumption that an employment relationship exists where one or more relevant indicators is present; and • (c) determining, following prior consultations with the most representative organizations of employers and workers, that workers with certain characteristics, in general or in a particular sector, must be deemed to be either employed or self-employed. - 13. Members should consider the possibility of defining in their laws and regulations, or by other means, specific indicators of the existence of an employment relationship. Those indicators might include: • (a) the fact that the work: is carried out according to the instructions and under the control of another party; involves the integration of the worker in the organization of the enterprise; is performed solely or mainly for the benefit of another person; must be carried out personally by the worker; is carried out within specific working hours or at a workplace specified or agreed by the party requesting the work; is of a particular duration and has a certain continuity; requires the worker's availability; or involves the provision of tools, materials and machinery by the party requesting the work; • (b) periodic payment of remuneration to the worker; the fact that such remuneration constitutes the worker's sole or principal source of income; provision of payment in kind, such as food, lodging or transport; recognition of entitlements such as weekly rest and annual holidays; payment by the party requesting the work for travel undertaken by the worker in order to carry out the work; or absence of financial risk for the worker. Uber [69] - Critical to understanding the Autoclenz case, as I see it, is that the rights asserted by the claimants were not contractual rights but were created by legislation. Thus the task for the tribunals and the courts was not, unless the legislation required it, to identify whether, under the terms of their contracts Autoclenz had agreed that the claimants should be paid the national minimum wage or receive paid annual leave. It was to determine whether the claimants fell within the definition of 'worker' in the relevant statutory provisions so as to qualify for these rights irrespective of what had been contractually agreed. In short, the primary question [is] one of statutory interpretation, not contractual interpretation. Uber at [76] - Once [the protective purpose of the legislation] is recognized, it can immediately be seen that it would be inconsistent with the purpose of this legislation to treat the terms of a written contract as the starting point in determining whether an individual falls within the definition of a 'worker'. To do so would reinstate the mischief which the legislation was enacted to prevent. It is the very fact that an employer is often in a position to dictate such contract terms and that the individual performing the work has little or no ability to influence those terms that gives rise to the need for statutory protection in the first place. The efficacy of such protection would be seriously undermined if the putative employer could by the way in which the relationship is characterized in the written contract determine, even prima facie, whether or not the other party is to be classified as a worker. Lady Rose lecture - The primary task for a tribunal is therefore not to interpret parties' contracts but rather to construe the statutory provisions and determine whether the claimants fall within their ambit. The purpose of the legislation would be fatally undermined if the written agreements of the parties were taken as the starting point of the analysis; it is precisely because of an employer's ability to dictate contractual terms that Parliament decided that statutory protection was required in the first place. - It has therefore always been the case that the status of the putative worker is determined by looking at how the relationship has operated in practice. CAC at [99] - Even if [Deliveroo] did it in order to defeat this claim and in order to prevent the Riders from being classified as workers, then that too was permissible: all that mattered was the terms of the agreement, analyzed in holistic and realistic way set out in Autoclenz. [Counsel for Deliveroo]of course mad no concession that either proposition was accurate. Deliveroo's purpose in deciding the terms of the agreement (and there was no question that the Riders had any direct say in the matter) was immaterial - all that mattered was what the terms actually were.