Author: jacquikellymediator
First Uber drivers and now Pimlico plumbers have thrown a spanner in the works of the gig economy, which is predicated on the concept that each piece of work is the equivalent of an individual ‘gig’ thereby dispensing with the need for employees and basic employment protections.
Earlier last week the UK Supreme Court found that Mr. Gary Smith, who worked for Pimlico Plumbers for several years, was a worker and not an independent contractor.
Why is this significant? It is significant because a worker is entitled to certain employments rights such as the right to statutory minimum annual leave, whereas an independent contractor, is not. Workers are the half-way house between employees who have the best, and independent contractors who have the least protections, under employment law.
In Mr. Smith’s case he worked for Pimlico Plumbers for six years, when he had a heart attack. Following this he sought to reduce his working week from five to three days whereupon Pimlico Plumbers dispensed with his services.
Mr. Smith brought a claim for unfair dismissal against Pimlico Plumbers on the basis that he was an employee. He lost on this point but argued before the Supreme Court that even if he wasn’t an employee, he was (1) a worker within the meaning of the Working Time Regulations 1998 which gave him a right to statutory annual leave; (2) he was a worker within the meaning of section 230(3) of the Employment Rights Act 1996 which protected him from any unlawful deductions from his wages and (3) that he was ‘in employment’ within the meaning of section 83(2)(a) of the Equality Act 2010 thus making it unlawful to discrimination against him on the grounds of his disability.
The Supreme Court found in his favour on all three grounds.
Definition of a worker
Mr. Smith’s case hinged on whether he came within the definitions of “worker”. Section 230(3) of the Employment Rights Act 1996 defines a worker as (a) an employee under a contract of service and (b) an individual who has entered into or works under “any other contract…whereby the individual undertakes to …perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”
The essential features of sub-section (b) or limb (b) of the 1996 Act is that the service must be personal service i.e. performed personally by Mr. Smith and not someone else and, the status of Pimlico Plumbers is not that of a client or customer to Mr. Smith. The Supreme Court looked at both concepts in detail before arriving at its conclusion that Mr. Smith came within the definition. This meant that Mr. Smith could claim the protections under the section 230(3) of the Employment Rights Act and under the Working Time Regulations where the definitions are the same.
Status under the Equality Act 2010
The Supreme Court dealt with this issue in a few succinct paragraphs. It said that section 83 was intended to give effect to EU law, article 157 of the Treaty on the Functioning of the European Union in particular. It said that in Allonby v Accrington & Rossendale College (Case C-256/01) [2004] ICT 1328, the Court of Justice of the European Communities, at para 67 & 68, interpreted the word “workers” in article 157 as persons who perform “services for and under the direction of another person in return for which they receive remuneration” but excluding “independent providers of services who are not in a relationship of subordination with the person who receives the services.” In Hashwani v Jivraq [2011] UKSC 40, [2011] 1 WLR 1872, the Supreme Court applied the concepts of direction and subordination and in Bates van Winkelhof v Clyde & Co LLP [2014] UKSC 32, [2014] 1WLR 2047 Lady Hale at paras 31 &32 observed that that interpretation yielded a result similar to the definition of worker in the Employment Rights Act 1996.
The Irish position
Apart from the Industrial Relations Acts, the term “worker” is not used that extensively in employment legislation but, that doesn’t mean non-employees/workers do not have rights under existing employment laws.
Employment Equality Act 1988 as amended
Like the UK Equality Act, the 1988 Act is required and does give effect to EU law and applies not just to employees, but also to workers as defined by EU equality law.
Organisation of Working Time Act 1997
Again, this Act is required to give effect to EU law and the Working Time Directive, in particular. The Working Time Directive provides that every worker has the right to annual leave and rest breaks etc. The European Court has said that the definition of worker within the meaning of the Directive is a matter for the European Courts and not the member states. The European Court has defined worker under the Directive and that definition is arguably wider than the definition in the 1997 Act which is confined to employees, apprentices and agency workers.
Payment of Wages Act 1991
This Act covers those whose contract of employment is defined as
(a) a contract of service or of apprenticeship, and
(b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer,
The language at (b) above is similar to the definition in the UK Employment Rights Act 1996 and could be said to include workers.
Conclusion
Employers can expect to see similar type challenges in Ireland and the Pimlico Plumbers and Uber cases provide the road-map.
Accessing Employee Personal Data under the New Data Protection Act
This right is set out in section 91 of the 2018 Act
The right of access in the 2018 Act is similar to the right of access in the 1988 Act (‘the old Act’). The two notable differences are (1) there is no longer any upfront fee and (2) the employer has one month in which to supply the data as opposed to 40 days.
What does the right of access mean?
It means an employee has the right to ask their employer to confirm whether or not their personal data is or has been processed and where that is the case, be provided with the following information:
- the description, purpose of and legal basis of the processing;
- the recipients of the personal data;
- the period or the criteria used to determine how long the data is to be retained for.
The employer is also required to tell the employee of their right to:
- correct/erase their data;
- make a complaint to the Data Protection Commission (formerly the Data Protection Commissioner);
- the data itself;
- information on the origin of the personal data.
This must be provided to the employee as soon as possible and in any event within a month of the request.
What the employee needs to do
The employee when making a request is required to provide the employer with sufficient information that the employer is satisfied that the employee is who they say they are, and sufficient information to enable the employer to locate the information/personal data.
Where an employer has reasonable doubts as to the identity of the requester or reasonably requires additional information to locate the information/data requested, it can ask for this information from the employee and the clock is stopped on the one-month period to enable this to happen.
Extending the time in which to respond to a request
Where the request is complicated the employer can ask that the one-month period be extended by up to two months. In such circumstances the employer has to notify the employee of the extension in writing, and the reason for the extension within the one-month period. An employer is allowed one extension only.
What is the situation where the employee’s data also includes data belong to someone else?
Where the employee data includes another person’s data, the employer is required to provide the employee with a summary of that data in such a format that it does not reveal the personal data of the other person unless that other person consents to its release. Under the old Act this was dealt with by way of redacting (i.e. blocking out) the other person’s data. That practice was reflected in the language of the old Act which specifically provided for redacting in circumstances where it was reasonable to conclude that such a process achieved the desired result. This doesn’t seem to be the case under the new Act. Now the employer is required to provide the employee with a summary rather than a redacted version. How much of an issue this becomes is hard to determine at this stage. The important thing from the perspective of the employer is that there is no inadvertent leakage of someone else’s data.
Exceptions to the employee’s right to their personal data
An employee is not entitled to an opinion given about them if the opinion was given in confidence or on the understanding that it would be treated as confidential and given only on the basis that it is not to be disclosed. This same exception was included in the old Act and the DPC gave guidance on what opinions it viewed as coming within the exception. The guidance can be viewed at https://dataprotection.ie/docs/Data-Protection-Access-Requests-for-Personnel-Records/m/206.htm
An employee is not entitled to information where the recipient is a public authority and the information is received in the context of an inquiry in accordance with the law of the State.
Restrictions on the right of access
Section 94 sets out a number of restrictions on an employee’s right to access all or part of their data. These include:
- ensuring the safety of the public and the safety/security of individuals and property;
- protecting the life and well-being of any person;
- avoiding the obstruction or impairment of an investigation or;
- the operation of legal privilege.
Where an employer decides to restrict access to data it must inform the employee of this and the reason why. It must also tell the employee of their right to ask the Commission to verify the lawfulness of the employer’s action, and of their right to seek a judicial remedy in relation to the restriction. The employer is required to create and maintain a record of the restriction, and the legal basis for this, and to furnish this to the Commission on request.
The format in which the data needs to be supplied to the employee
Section 93 provides that the data is supplied in the same format as the initial request, in so far as possible.
What’s new about data access requests?
Not a huge amount, but the environment in which such requests are made has changed. Employees have a heightened awareness of their rights in general, including their right to make a complaint to the Commission and or/take a data protection action for damages for breach, including non-monetary damage. In those circumstances employers can expect to see more such requests. Until employers streamline how they respond to data access requests, they will be playing catch-up and risk becoming enmeshed in long drawn out data access disputes with disaffected employees about what data they have or haven’t got.
Apart from the obvious what do Stormy Daniels, the TV drama The Split and Harvey Weinstein have in common? Answer: non-disclosure agreements. Non-disclosure agreements have been getting a bad press recently. According to Donald Trump “These agreements are …very common among celebrities and people of wealth.” Not for the little people then, but that’s where he is wrong. Without them the legal system would grind to a halt from overload.
The Carpenter family settled their case against the HSE over the circumstances of their son’s birth which left him with cerebral palsy this week. Their lawyer, Roger Murray, when invited to comment on the legal process said that mediation has to be the way forward in cases such as these.
This is a seismic shift in mindset from an era when many litigators’ perception of themselves was as the gladiators of the legal world. They regarded mediation as the unmanly touchy-feely option not suited to the bear-pit of proper litigation. How things change as mediation moves firmly front and centre into the mind of the litigator, when deciding how to run a case best suited to the client and their circumstances.
Mediation agreement
Before the mediation itself begins the parties would be expected to sign up to an agreement to mediate. A copy of the agreement to mediate is generally given to each party after the mediator has had an opportunity to speak with them separately in advance of the mediation proper and explain the process.
What should the agreement to mediate contain?
The agreement to mediate should be written in clear, transparent language so that it is clear to non- legal parties what the process is, what happens in the event of agreement (the legally binding or non-binding nature of the agreement) and; what happens in the event there is no agreement. It needs to say something about:
- The confidentiality and the Without Prejudice status of the mediation
- The conduct of the mediation – who will attend/time/date/location. What documents should be given to the mediator etc.
- The apportionment of the cost of the mediation
- An acknowledgement that no terms will be legally binding until set out in writing and signed by the parties
- The role of the mediator during the mediation and following the mediation
- What happens at the conclusion of the mediation
Mediation is a voluntary process by which parties who are in dispute can agree, on a entirely confidential basis, to resolve issues between themselves. The agreed resolution can be made binding and enforced by the courts in circumstances where the other party defaults.
The role of the mediator is to facilitate or guide the parties to an agreement. The mediator is impartial and required to act with integrity as between all parties.
Why choose mediation over litigation?
Mediation and litigation are not mutually exclusive but there are reasons why parties might prefer to mediate over litigation.
Cost
In the first instance there is the cost factor to be taken into consideration. High Court litigation can be very expensive and if you come out on the losing side you will generally have to pay not only your own legal fees but also those on the winning side. In litigation the winner takes all. In mediation, the parties know up front how much it will cost and how that amount is to be apportioned.
Speed
The courts are clogged up with cases and it would not be unusual to have to wait a year and more before your case comes up in the list for trial. There is no waiting-around time for mediation. When the parties are ready to mediate, it takes a few weeks to organise.
Confidentiality
A core principle of the judicial system is that cases are heard in public. A core principle of mediation is that it is a confidential process so the parties control who knows what and how much they know.
Autonomy
In litigation, the court determines the outcome in accordance with the law. There are certain things it can and can’t do. In mediation, the parties agree the outcome and so the same restrictions do not apply. Indeed, the parties may decide in a mediation that there is to be no agreement and the mediation is thereby at an end. It is not so easy for the parties to extricate themselves from court proceedings once they have begun.
Duty on legal advisers
Since January of this year, lawyers are required to sign a statutory declaration in advance of commencing legal proceedings confirming that they have advised their client about the benefits of mediation.
As Karlin Lillington of the Irish Times (26 April 2018) remarked, everyone is talking about GDPR but things aren’t necessarily getting any clearer. There is a lot of noise out there and attempts to scare the bejaysus out of people by pointing to the astronomical fines that non-compliance can potentially expose a company to, without providing solutions.
To understand what you have to do, you need to have an understanding of the principles underlying GDPR. The principles are straightforward. They are about transparency and accountability. If you, as an employer, collect data on someone – be it an employee, a worker or a contractor – you need to tell them what information you hold; why you are holding it; how long you intend to hold it for; what security measures you have put in place to make sure that their data is safe and; how they can access, amend, transport or erase it.
An employer will do this through the medium of three documents – a privacy statement, a data protection policy and a data retention policy.
Privacy statement
The privacy statement should set out information on the nature of the data collected/to be collected; the purpose for which it may be used; to whom it may be disclosed; the reason for the processing; if the information is to be transferred outside the country, where and why; how long their data will be retained; their right to correct/erase/move their data; their right to complain to the Data Protection Commissioner and, if there is a Data Protection Officer in place, their contact details.
Data Protection Policy
The Data Protection Policy will elaborate on some of the issues referenced in the privacy statement. In addition, it should address the issue of where the data is to be held; the security measures that are in place to ensure the safety of the data; the rules around sensitive data; how data access requests will be dealt with; what the process it in the event there is a security breach; the individual’s obligation to process other individuals’ personal data in accordance with the policy and the consequences for failing to comply with the policy.
Data Retention Policy
The data retention policy should set out the how long a data subject’s data will be retained for and the reason for the retention.
Summary
It is of course more complex and more nuanced than just having a privacy statement, a data protection and retention policy but this is a good starting-out position. It will help bring clarity to how an employer deals with personal data and, who, within the organisation needs to have it. It might also make people think twice about cc’ing the “whole world” when it comes to discussing an individual or, consider having a meeting, rather than a myriad of emails that will be subject to data access requests. The Cambridge Analytica scandal; the ongoing litigation before the European Court of Justice relating to the transfer of data; the increased fines and enhanced individual rights to sue for breaches relating to their personal data, is going to put data protection “front and centre” for the foreseeable future. Employers will probably find themselves in the cross-hairs, where any advisor worth their salt will be telling disgruntled employers to put in a data access request and see how much of a “stir” that causes an organisation. Finally, it goes without saying, make sure that the data protection clause in the contract of employment is consistent with the privacy statement, data protection and data retention policy.
Jacqui Kelly is a qualified solicitor. She worked in London for a number of years as an employment lawyer before returning to Dublin. She is currently the Registrar to the Labour Court. Prior to that she was a senior associate at A&L Goodbody, Solicitors specializing in employment law and dispute resolution. She trained as a mediator in 2009 and has mediated a number of employment and commercial disputes as well as attending mediations in her capacity as the participant’s legal representative.
She is an accredited member of CEDR and MII.
Jacqui has a breadth of experience in resolving employment and commercial disputes in a confidential forum in her capacity as lawyer, conciliator and mediator
Contact details: jacquikelly27@gmail.com
Jacqui Kelly, Mediator and Trainer in Employment Law 