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Precarious work - government now consulting

THE GOVERNMENT has opened a total of four consultations on changes to employment law aimed to strengthen the rights of (some) people in precarious work. There are upcoming deadlines to respond to these, see below.

The proposals under consultation have been described by Trades Union Congress (TUC) General Secretary Francis O'Grady as "baby steps". The planned measures, published in February, were in response to the disappointing Taylor Review into Modern Employment Practices (see our earlier article on the Taylor review) and a subsequent report by two Parliamentary Committees.

Proposals include improvements to the enforcement of holiday pay and statutory sick pay entitlements, more enforcement of "umbrella companies" (companies, often set up by agencies, that can charge workers for their payroll admin) and some limited improvements to awards at Employment Tribunal (ET) in some cases.

Also planned is the right of the worker from "day one" (the day they start work) to be given detailed written statements about pay, conditions and deductions by the entity engaging them. The government has also put before Parliament regulations that would require employers to provide detailed, itemised payslips from day one.

There are also proposals on removing the so-called "Swedish derogation" - the legal loophole that allows employers to pay agency workers far less than permanent staff doing the exact same job. Ministers are also proposing consultations on the enforcement of employment rights and on the currently very complex tests of employment status - whether someone is engaged as genuinely self-employed or as a "worker" or employee with more rights.

Conspicuously absent from the proposals is anything on outlawing zero-hour employment contracts (they're unlawful or tightly restricted in some EU member states) nor are there any proposals on guaranteed hours of work in contracts. The 1.8 million workers who currently miss out on key protections at work such as redundancy and maternity or paternity leave still won't get these under these proposals.

The only one of over 50 recommendations in the Taylor Review that isn't addressed at all in the consultation is the one on revising the taxation of the self-employed.

Most freelance journalists are unlikely to see any meaningful changes in their working relationships, although "regular casuals" who do regular shifts and/or have tax and NI deducted at source or get holiday pay might eventually see a slight improvement.

Agency workers

One of the four consultations is on agency workers (details here) including Swedish derogation. This one closes on 9 May. There are estimated to be 420,000 agency workers nationally who've been in their job for over a year, with 120,000 of these in their jobs for five years or more. Many agency workers are paid a lot less than colleagues on contracts " some earn £4 an hour less.

We're not aware of the phenomenon of freelances being hired long-term through agencies being a big thing in our own media sector. Getty have reportedly used agency workers, and the Freelance have heard of some hiring through agencies at a press office of a Government department - with no consideration given to issues around copyright and libel risk implications.

If you are an NUJ member and you do work via an agency, please contact the Freelance Office (in confidence) as the NUJ is gathering testimony for its submission to the consultation on this.

TUC research shows that many workers are offered no choice but to sign an agency contract. Agency work is no longer a stepping stone into more regular work, while agency workers miss out on career progression. There are also plans as part of this consultation for better information on the role of umbrella companies, with an obligation to clearly itemise in contracts and payslips any fees and deductions they will charge workers for the payroll admin.

Enforcement of employment rights

Enforcement of employment rights is the subject of another of the consultations - this one closes on 16 May (details are here.)

Under consideration as well is a proposal to extend the powers of HMRC (tax inspectors) to enforce sick pay and holiday pay for low paid workers. Views are also being sought on simplifying enforcement of Employment Tribunal (ET) awards to workers (many such awards remain unpaid by employers), with a "naming and shaming" scheme for non-compliers. There's also a proposal for bigger ET penalties for "aggravated" breaches of employment law by repeat offenders.

Transparency

The next consultation is on "transparency in the UK labour market" - it closes 23 May. (See here.)

This includes a right of workers (not just employees) to receive a written statement of their pay and conditions on "day one", not just within the first two months as currently. Proposals also include the right of workers to go to an ET if they don't get this statement promptly.

Additionally under consultation are plans for a right of workers, including agency workers, to request more stable contracts. Issues to be considered include what category of workers this would apply to, how long before workers get that right, how long employers have to respond. (Under current employment law, most freelance journalists wouldn't meet the statutory definition of a "worker".) Of course, an unenforced right to "request" something isn't really much of a right at all.

The Government's also asking the Low Pay Commission to look into a higher National Minimum Wage rate for "non-contracted" hours to make it less of an incentive to hire workers on irregular hours or zero-hour contracts.

There's also a look at "continuity of employment" " with possible revisions to rules on workers accruing sufficient service to get rights such as protection against unfair dismissal and statutory redundancy pay. Precarious workers miss out on these at the moment.

Employment status

Finally, closing 1 June, is the consultation on employment status.

The earlier proposal to put the burden on employers rather than employees to prove at Employment Tribunal whether someone has the status (and rights) of a "worker" rather than an independent self-employed contractor has disappeared.

This consultation will still look at the currently complex tests (there are lots of them) on whether an individual has the status of a "worker" or "employee", whether these should be more clearly defined in law and more closely aligned with tax status.

There's a proposal to create a new status of "dependent contractor" (self-employed in name only, to the advantage of whoever's hiring them, and engaged by one client only). In the opinion of the TUC's Senior Employment Rights Officer Hannah Reed this new "dependent contractor" test would be "a bad idea".)

Creating a a definition in law for self-employment is also on the table. This last idea in particular would seem to be a bad idea from the point of view of our freelance members. The suspicion is that the criteria for self-employment will become a target that employers (sorry, clients) aim for when drawing up contracts, to save on payroll taxes and to avoid having to give those they are hiring rights as workers.

The TUC is forming a position on all these proposals, the NUJ will be feeding into this. Individual NUJ members with contributions to the consultations should contact the Freelance Office. You can make individual submissions via the web addresses above.

If you work for an entity that enforces a break between periods of work - this is usually to prevent those it engages from accruing the rights of workers or employees - please contact the Freelance Office. Any information on this practice would be useful for the NUJ's submission to the consultations. We've heard that the Guardian have used this practice in the past, and the BBC have reportedly used three- and six-month contracts as probationary periods.

We don't yet know when Government is expected to report back after the end of the consultations, or of any timetable for any of the above to find its way into legislation or being implemented. This is also subject to a huge amount of Parliamentary time being taken up by Brexit, the effects of the Government's wafer-thin majority and possible snap elections. Watch this space.

  • This article was amended on 12/04/18 to add an appeal to for those NUJ members working for agencies to contact the Freelance Office