Employment Law Coffee Break: Hybrid working webinar, changing terms and conditions, Court of Appeal finds couriers were self-employed and how employers support employees’ fertility treatment

Written on 1 Jul 2021

Employment Law Coffee Break: Hybrid working webinar, changing terms and conditions, Court of Appeal finds couriers were self-employed and how employers support employees' fertility treatment

Hybrid working: navigating legal risks to fast track business growth

Please join us for our next webinar focusing on hybrid working where our panel from Osborne Clarke, Actual Experience and Dell Technologies will be discussing some of the key legal risks and challenges posed by the transition to a hybrid working model and looking at how best to navigate these risks to fast track future growth. To register, please click here.

You can read here a summary of the findings from our webinar on 15 June where we were joined by four panellists, Emily Plotkin (GitLab), Jon Nurthen (Staffing Industry Analysts), Paul Allsopp (The Agile Organisation) and Sue Rains (OVO) to discuss approaches to hybrid working.

Changes to the employment contract: a look at the legal and practical issues that arise on changing employee terms and conditions 

With the use of "fire and re-hire" in the spotlight and organisations scrutinising their current employment contracts in light of their operational requirements and protecting their business in the future, our latest Employment Law Coffee Break podcast, looks at the legal and practical issues that arise when changing terms and conditions of employment. Please listen here.

Self-employed or worker: Court of Appeal upholds decision that couriers are self-employed 

The Court of Appeal (CA) has upheld the decision of the High Court that Deliveroo riders are not in an employment or worker relationship for the purposes of collective bargaining rights. Central to the decision here was the operative right of substitution which was held to be fundamentally inconsistent with worker status.  

The CA invited representations from the parties on the Supreme Court decision in Uber v Aslam where the drivers providing services through the Uber app were workers for the purposes of the Employment Rights Act 1996 therefore benefitting from rights under the Working Time Regulations 1998 and the National Minimum Wage Regulations.  However, the current case involved consideration of rights under the European Convention on Human Rights, rather than domestic law and in any event the Uber case did not turn on the essential feature of personal service as Uber did not rely on any substitution clause. 

While the right of substitution was pivotal to this decision, it was noted that other features of the relationship between Deliveroo and the riders reinforced the conclusion that they were not in an employment relationship for the purposes of Article 11 (the right of assembly and association) when considering collective bargaining rights; for example, riders were under no obligation to accept work at all and the most essential physical tools of the job (phone and bicycle) are provided by the riders themselves. Furthermore the riders were free to work for competitors. 

This case provides helpful guidance following on from other recent decisions from which businesses can seek to determine the employment status of different divisions of their workforce. Here, the substitution rights were sometimes exercised and real; it was not impossible for substitutions to be arranged by the riders, and the court held that Deliveroo really did not mind who did the work. That will not be the case for many gig-working arrangements and so this decision may not be something many other businesses using gig-working arrangements (where control will be the key battleground) can rely on.

Fertility treatment and the workplace: how are employers supporting employees? 

With a renewed focus on employee wellbeing and diversity and inclusion, employers are increasingly recognising the challenges many individuals face on a personal level and the role of the employer in supporting them within the workplace. Recent months have seen employers revisiting workplace policies to consider such issues including, for example, how support can be provided to employees through menopause, miscarriage and those undergoing IVF and other assisted reproduction treatments. 

No statutory right to time off for fertility treatment 

Pregnancy and maternity are "protected characteristics" for the purposes of discrimination protection under the Equality Act 2010. Statute also gives a pregnant employee a legal right to paid leave for ante-natal appointments (and for her partner to attend up to two of those appointments). Parents are also provided with various rights to take time off to look after a child, for example through maternity leave, paternity leave, shared parental leave, adoption leave, parental leave and dependants' leave. Most recently the government introduced a right for parents to take two weeks' paid statutory bereavement leave on the still-birth (after 24 weeks' pregnancy) or death of a child.    

However, there is currently no statutory right to time off for fertility and other assisted reproduction treatments, such as IVF. Infertility is also not a disability for Equality Act purposes.  A woman undergoing IVF treatment is only considered pregnant from implantation of the fertilised ova. Where an employee is not considered pregnant, such as in the early stages of IVF treatment (for example, where an employee is attending appointments, undergoing preliminary treatment) unfavourable treatment would not count as pregnancy and maternity discrimination. 

An employer remains at risk of discrimination claims on grounds such as sex or sexual orientation where an employee can show less favourable treatment with an appropriate comparator, for example in the way the employer responds to any requests for time off, treatment under any sickness absence policy and any request to work more flexibly.   

Some guidance for employers is provided in the Equality and Human Rights Commission Code of Practice (which is not legally binding but may be taken into consideration by Employment Tribunals). It states that "it is good practice for employers to treat sympathetically any request for time off for IVF or other fertility treatment, and consider adopting a procedure to cover this situation" which should include "designating a member of staff whom they can inform on a confidential basis that they are undergoing treatment". 

Providing workplace support 

Reflecting diverse family structures, employers are increasingly considering what support they can provide to their employees, whether through introducing a policy on fertility leave, forms of financial support for IVF and other assisted reproduction treatments through an employee benefits programme and/or offering support on a case by case basis. Latest statistics from The Human Fertilisation and Embryology Authority, published in May 2021, note that an increasing number of cycles involve patients in female same-sex relationships or with no partner. 

Care will need to be taken that any policies adopted or benefits provided are inclusive and applied consistently to avoid inadvertent discrimination claims. In all cases, employees undergoing IVF or other assisted reproduction treatments should be treated sensitively and confidentiality maintained. Many employers are also exploring support mechanisms, such as internal staff networks, educating managers and employee assistance programmes. 

Osborne Clarke's Jessica Carter-Syme has shared her own experiences in The Lawyer. For those who have access to it (a subscription is required), you can read her story here.