Workers rights failing to keep up with times

Review of legislation under way in the UK

While the gig economy continues to gain traction across various industries, the hospitality sector is no stranger to working with short-term casual or agency staff.

Recruitment in the hospitality sector needs to take account of the seasonality and unpredictability of the industry, and it is common practice to use temporary workers to provide cover at busy times.

Short term staff are often hired on an event-by-event basis, with roles often fulfilled by agency workers, or engaged on a casual or zero hours basis.

While these arrangements are generally used where the employer wants to engage a worker on a flexible basis (while incurring as few legal obligations as possible), workers will usually be entitled to some basic employment rights such as the national minimum wage, the right to paid annual leave, and others under Working Time Regulations 1998.

Agency workers are also covered by the Agency Workers Regulations 2010, which provides some additional protections.

However, the growth in popularity of mobile platforms which enable workers to pick up “gigs” or shifts on demand, has led to an increase in individuals undertaking short-term or freelance work, usually on a self-employed basis.

Individuals who are self-employed have very few employment rights or protections, and while the concept of on-demand recruitment undoubtedly lends itself well to the low-skilled, casual roles required within the hospitality sector, it is difficult to ignore concerns being raised in this area.

Parties in favour of the gig economy model cite the mutual benefits of noobligation flexibility for both parties, while cynics voice concerns about the erosion of employment rights stemming from misclassification of workers as self-employed, and the potential for exploitation of low skilled workers.

The legal disputes in this area are well documented. Last year, an employment tribunal held that Uber drivers are workers, rather than self-employed contractors, and therefore entitled to the associated statutory rights.

While this decision is subject to appeal, cycle worker Margaret Dewhurst was also found by tribunal to be a worker of logistics firm CitySprint.

At the same time, the controversy surrounding zero hours contracts has been widely reported, and concerns have been raised in respect of the use of agency staff at fashion retailer Asos.

Amid the growing debate surrounding the gig economy, and other forms of flexible working such as zero hours contracts, it is fair to say UK employment law is not equipped to cater for atypical working arrangements which have evolved in line with new technology and changing cultural priorities in terms of instant delivery.

To address this, the government is undertaking a review of how employment practices need to change to keep up with modernised business models.

In the meantime, as the legal disputes rumble on, we might see more gig workers bringing claims against employers to secure more favourable rights.

As an industry which reaps the benefits of the flexibility offered by the gig economy, the hospitality sector is bound to be carefully watching these developments.

Casual work is common in the hospitality sector.