The Taylor Review on the gig economy - Good Work?

Jonathan Chamberlain: It's finally here; the long awaited Taylor Review of modern working practices, called, with some optimism, "Good Work". I'm Jonathan Chamberlain, I'm a Partner in the Employment, Labour and Equalities team here at Gowling WLG and I'm joined by my colleagues Vivienne Reeve…

Vivienne Reeve: Hello.

Jonathan: …and Zoe Fatchen.

Zoe Fatchen: Hello.

Jonathan: I'll introduce them properly later, but we are recording this podcast on the very afternoon that the Taylor Review has been published. So this is our first take, our instant reaction. We will as a team and teams be doing more commentary on the report in the days and weeks to come, but this is what's smacking us between the eyes as of today.

Now, I was invited to the launch of the review and I was really hoping to be able to deliver this podcast with a tone of insider's wise understanding to remark that when Matthew, because that's what I would have called him, had made a particular point that one could tell he was really committed to it and that the Minister was nodding so we could predict that would be part of the legislation. However, the train got stuck at Milton Keynes and instead of being in a room at the Royal Society of Arts; I was at the Costa Coffee at Milton Keynes Station, for the whole morning.

Now, why am I telling you this?  Well had I actually I been in the room then I would almost certainly now, no doubt, be telling you that Matthew Taylor was a wise figure who would solve all the problems and really that this was handed down on tablets of stone, this was the new law and the prophets, but actually my blood is nine parts acid at the moment and I am positively dripping with cynicism. So it's one of the reasons I've invited Vivienne along because Vivienne is one of the most optimistic people I know, who can find the positive in almost anything at any time as well as the fact that she is engaged in actually advising on these particular issues at the moment. We've asked Zoe along because she specialises in employment tax and I think it's the tax angles of this report that are probably the most important and may possibly be the last to be implemented if at all. The other reason for telling you about my lousy morning is who doesn't like to hear a lawyer's self-importance punctured? But anyway on to the report itself.

Vivienne, its how many pages long? A lot. Summarise it for us.

Vivienne: I think the key things that smack me between the eyes as you say about this report are these:

The first, as set out in the 'Seven Steps Towards Fair and Decent Work' at the beginning of the report, is the need for transparency. A recognition that it's only fair that if you are engaging in work, it's reasonable for you to understand the terms on which you are providing that work.

The next key point I think is this shift in the burden of showing the status of somebody. The current case law, which has been ongoing for some years now, has shown that the issue about status is complex, hence this review which is one of three ongoing at the moment. The report suggests that instead of the individual shouldering the burden of trying to prove that they have worker or employee rights, actually that should be put on the employer, is really interesting and similarly, where there is an issue about employment status or worker status, there should be no employment tribunal fee paid for that.

The other key points are the use of data to calculate wages or task work and as Jonathan said the issue about tax which Zoe is going to talk to us about.

Jonathan: What are the highlights of the report for you? What do you think the most interesting aspects are?

Vivienne: I think there's two really interesting aspects. The first is looking at the case law on how we determine whether somebody is a worker or an employee and Its things like control, substitution, mutuality of obligation and what the report wants to focus on is more about control. You can see how that's come out of the string of cases that have come through in the last year or so. Where in the contracts it may appear as though there is very little control but actually in reality there is a lot more control in terms of that relationship and how the person is working and less focus on whether you can substitute your service that you're providing and for me working in resolving employment disputes and in tribunals, particularly the issue about not requiring a tribunal fee to be paid, if status is a preliminary issue if you like.

Jonathan: Yeah, I think that's one of the most interesting points as well. I think he has ducked the issue a bit, frankly, because he's saying he wants clearer tests, well of course we all want clearer tests, but what are the clearer tests going to be, that is the at very least $64 question. But how do you think this is actually going to play out in the so-called gig companies? Because I think there are a couple of measures in here that are really quite interesting there.

Vivienne: The first thing to remember is that a lot of organisations have premised their business model on these individuals being contractors. So where there is a dispute the first issue is for the contractor, so-called contractor, to show that actually they are more than that and they are entitled to worker's rights or employee rights. Given that it is, at best, confusing there are endless seminars and books written on this very subject. To expect somebody with very little employment knowledge and probably very little spare cash to engage a lawyer, then I think taking the step to take them out of the tribunal fee system, is a really important one.

Jonathan: Yes and I think that combined with the presumption of employee status is going to be really powerful.  I mean and you think about some of the cases that we've had, I mean the infamous Deliveroo contracts, which said I mean I don't know if they've changed them now, but as recently as a few months ago, they told people that they weren't allowed to assert in a tribunal that they were employees. So you're…I think you're absolutely bang, on there are business models which are predicated on employment status and we'll be looking at some of the effects of that from a tax perspective in a moment.

But one of the abuses that, and I think it is an abuse frankly, that we hear about now, is with some of the so-called gig economy companies and they've had cases taken through the system. They've had them taken to an appellate level and they've still lost there and what they have said to their, what I will call workforce, is that well these people may have won their case, although we're still going to appeal we're going to keep appealing until the crack of doom. But we aren't going to change our policies, we're not going to change our processes, they're just one off cases and it doesn't apply to the rest of you. That will force every single individual to challenge their status, which of course was wholly impractical and I think this could make a real difference.

Vivienne: I think it could and I think you know we've also already seen more organised activity on that front and new trade unions being formed to sort of support these workers, so that they aren't having to strike out on their own every single time. I think the interesting point for me there, is you can take that line, I can see why because if a business is predicated on a certain model, it's very difficult to just flip that. But equally if you are dependent on people to provide your services to whatever extent, there is a serious PR and reputational issue and I think there is an assumption that what the Government and possibly the report is hoping for, is that there will be soft pressure. If there's no legislative change, then there's gonna be soft pressure, because people will stop using Deliveroo or will stop using CitySprint or whoever it is and I think for some people that matters. The question is how much it matters to enough people.

Jonathan: Well yes, I think this is the idea isn't it that, what do they say? Daylight is the best medicine. This idea that companies should become more open about their employment practices and this should be a corporate governance point if you like. That's interesting because that's sort of following the patterns set by the whole modern slavery regime, where there aren't any fines as it were as such, at least not directly, for failing to disclose your slavery audit, but all our clients are busy implementing proper processes and procedures because they want to be seen to be doing the right thing. Now, I think we can all agree that slavery is a bad thing. I'm not sure that there's the same unanimity of view on employment practices, because the research shows that lots of people like zero hours contracts for example.

Vivienne: I think you're right I think the flexibility does work for a lot of people. You can hear it in radio interviews, in testimonies, that for some people the flexibility is absolutely what they need and they don't particularly want the model to change. But I think this ties into the bigger societal issue, which is that it's not just anymore about unemployment figures and whether unemployment is going down, it's about quality of work which is what the report touches on quite a lot. I think that actually there are more people who are dependent on this type of work for their main income and if you're in that category it is more stressful and there are more issues I think about the rights you should have.

Jonathan: That's really interesting and I think you've absolutely hit it on that. But let's now talk about, not so much the elephant in the room as the entire herd of trampling elephants, probably with a few thousand wildebeest thrown in as well, which is tax. Zoe, what does the report say about taxing the various categories of employment, self-employment etc.

Zoe: Well the report, first of all, talks about the current discrepancies that you find, in relation to tax as between the different forms of engagement.

They go into quite a lot of detail talking about the tax that would paid by someone who brings in the equivalent of the average UK salary, which at the moment, is round about £28,000 and those differences are mainly in relation to National Insurance rather than Income Tax. So, for example, someone who is an employee would pay £2,095 in National Insurance, if they were employed and their employer in addition would pay a further £2,409 on top of this. But a self-employed person's liability would be much, much lower and these differences are even larger for people working through their own company. So overall someone who makes the equivalent of the UK salary and who works through their own company would pay only £4,300 in tax, as opposed to a self-employed person at just over £5,000 and an employee at well over £7,000 and that's for the same amount of earnings. Clearly there's a big discrepancy there, so we have to ask ourselves, why? What is the reason for setting up the tax system in this way and the answer is there isn't really a good reason, as far as we can see, not the way that the benefit system certainly works now.

So, a long time ago when this state of affairs began, one might say that a self-employed person didn't have the same sort of ability to rely on the state that an employee would. Whereas now, since April last year, the self-employed people and employed people, have broadly the same rights to the state pension. When you consider that £100 billion of National Insurance contributions were paid out in benefits last year, around 94% of which went on the state pension. It's clear to see that employees are massively disproportionally funding the state pension and at some point someone is standing up and saying hang on a minute this just doesn't look fair.

Jonathan: Well that's really interesting isn't it, because one of the things that was in the report was the idea that we should be looking at harmonising tax rates but of course the Chancellor tried that earlier this year and it all went horribly wrong didn't it?

Zoe: Yes, exactly. So this is the classic plan that could be developed by economists sitting in a room and looking at their graphs, looking at the way that the economy works, looking at the revenues and considering these discrepancies. That's all very well in theory but when the Chancellor tried to do it immediately before the election, even a 1% increase created such political uproar that it was simply not possible to do it. So, while the report discusses these inequalities and suggests that it would be a good idea to harmonise the way in which these various different engagements are treated, there is no real guidance as to how that might work in practice and how that might become or be made more palatable for the businesses and the individuals concerned, except for a general statement that it's necessary to tie in tax liabilities with the benefits which accrue to an individual who pays that tax.

Jonathan: See, I think this is a really interesting political and social issue and I think this is something that Taylor is getting at here, because people think that if you're self-employed you bear more risk and therefore you should be taxed less. Clearly, self-employed people have no employment rights as such, although the report does have something to say onto that and Vivienne we might come back to you on that in a moment, but employment rights are between you and your employer or your labour engager or whatever you call them. Whereas tax is about you and the State and that bargain has broken down completely, if it ever really existed.

It's a bit like how I see it I mean I'm a cyclist I would see it like that, with so-called Road Tax and car drivers getting really uppity about cyclist because they pay Road Tax and cyclists don't and you try pointing out that actually there's no such thing as Road Tax. There is merely a duty which is calculated depending on your carbon emissions and in fact it's never been hypothecated and allocated towards the maintenance of the roads since 1920 something or other. But at this point you're either in a ditch or being screamed at as you drive past you at a great rate of knots, because it's just how people think about stuff. I think what Taylor is getting at is trying to change the way that we think about this, to think about work and a sense of work and a sense of rights and obligations that go with this. Then perhaps once we've all got that into our heads, then the vast majority of people are paying so much more towards their pension cost, might say, politely in a properly British sort of way, excuse me Mr White Van Man but we're not getting a very good deal here and Mr White Van Man might say well, that's fine because now I've got some of the rights and protections that I perceive that you've always had and that I should have too.

Zoe: Just as nobody would argue that cyclist should not be allowed to use the roads, equally nobody would suggest that people who are self-employed should not have the right to a good pension, or at least some form of state pension on retirement.

Jonathan: Exactly so.

What do you think about though this idea that you should harmonise the tax and employment tests for employment status because at the moment the employment tribunals and the tax tribunals don't necessarily run in tandem do they?

Zoe: No, they don't. they're quite different and you can have different results for the same engagement for employment law and for tax which causes a great deal of uncertainty particularly when we're talking about the worker status, which is neither employment nor self-employment but something in between, because there is no concept of a worker for tax purposes. An individual is either treated as an employee for tax purposes or they are not and then subject to the various rules that are in place for intermediaries.

So if we're looking at whether the tax law and the employment law ought to be harmonised in terms of working out whether a person is an employee or not there are both pros and cons. It would make the compliance much easier, it would make the analysis much easier, but if you don't have better harmonisation as between the different types of engagement, then that could, even more than is currently the case, cause distortion in the employment market. So the costs involved, or the differential costs involved in taking on someone as an employee, as opposed to engaging someone as a self-employed individual, could even more than now affect the way in which those people are engaged. So the tax would end up driving commercial and personal decision making in a way that it shouldn't do.

Jonathan: Even more than it does already quite possibly.

Zoe: Exactly.  

Jonathan: Yes, and of course, you and I were at a conference recently where we heard that this isn't necessarily how other countries do it. I mean, it seems so obvious harmonise and make everything simper. But it isn't how everywhere does it, is it?

Zoe: No, that's right. So, for example, in Sweden the definition of an employee for employment law purposes is not the same as it is for tax purposes and there are also various other tests for other reasons which could come up with different results. So, for example, their benefit system tests individuals in different ways too.

Jonathan: The result of that is not as you might expect a massive amount of litigation but actually there are just fewer distortions in the market. Now, Sweden of course has very strong trade unions for the self-employed and it has state backed advisory services so that it's much easier for everybody to work out what it is they're entitled to.  You know the HMRC online employment status calculator is pretty crude I think it's fair to say by Swedish standards, but that's why I think going back to some of the things we were talking about earlier, this idea of presumption of employee status and ease of access to a mechanism to determine that are quite interesting steps in that direction.

If we can come back to you Vivienne because Zoe mentioned worker status which of course isn't present in the tax legislation. It is currently present in the employment legislation but there is a suggestion that might change.  

Vivienne: Yes, I think you're referring to the suggestion that the worker status, as we currently try and understand it, could be changed to dependant contractor which would be a sort of third way. So it wouldn't be a radical change from what we have now it would be a sort of adapting of what we've got.

Interestingly I think one of the things which doesn't stand out immediately but when you start to read the detail is that the report does suggest that National Minimum Wage and statutory sick and some holiday issues, given that these are about protecting the basic rights of vulnerable people, should be dealt with by HMRC rather than the tribunals which is a really interesting suggestion. The review does acknowledge that this would be complex to try and change and achieve but I think it's definitely something that we should be thinking about.  

Jonathan: Yes, and I think it is interesting as you get into the detail of this report that you see just how hard this team have worked to try and grapple with some of these issues. I mean looking at the instant reaction on social media, of course what you were getting was comment after comment, tweet after tweet about they've missed this, they've got that wrong, this is difficult etc. etc. and no doubt all of that is true. But there's no doubt that this is a really substantial body of work with some really interesting ideas.

Vivienne: Absolutely and I think that the good thing about it is that it would have been easy as anything to do a quick review and to suggest a few quick fixes. But the point of this is that it's really trying to grapple with the societal issues about the way in which the world we work in is changing, models of work are changing, but also how we value work and how our well being and our quality of life depends on our work. Hence the need for more transparency and understanding.

Jonathan: One of the really interesting things about the report is that it recognises a lot of these changes have come about because of technology but a lot of the solutions might lie in technology. What do you make of that Zoe?

Zoe: Yes, I think that's right. So technology provides a number of possible solutions and benefits in this scenario.  From forums which are available for self-employed people to come together and talk about the issues that affect them and ways in which they might find solutions, through to financial services for self-employed people to help them to save for their retirement. Either through contributing to private pensions or through the new lifetime ISAs which are introduced from April this year for anyone who is under the age of 40.

Technology can also help in terms of identifying whether an individual should be treated as an employee or a dependant contractor or a self-employed individual, by providing information either to the employment tribunal or also and increasingly, to the tax authorities.

So, for example in Estonia their Tax and Customs Board has recently set up a project piloting a collaborative way of working to simplify taxation for sharing economy workers. So that Uber, in this case, shares information about its financial transactions between the customers and the drivers, and this is information which is already collected, so it's not an additional burden on the employer. That information can then be pulled together and provided to the tax authority as part of their compliance.

Jonathan: Oh, that is interesting and of course, on the subject of ride sharing, how the report proposes dealing with the National Living Wage conundrum is to use algorithms so that drivers can be warned that they might not make the National Living Wage at times of low demand and that falls well short of what the TUC and others were asking for. But it's the review taking on board that actually a lot of people want to work in this way and, as you say Zoe, it's using data which is already there, the software can cope with this.

Zoe: Yes, exactly and in that example, that might be part of the information which helps an individual driver to work out what are the most profitable times of day to be working for example, and could save someone from fruitlessly hanging out and waiting for a ride which might not appear and therefore could give that person a better work/life balance.

Jonathan: Yes, I have a horrible feeling that the upshot of all this technology is I'm still not going to be able to get a cab at 11:30pm on the West End on a Friday night but never mind so be it!

There's one particular bit for employers which wasn't one of the things that was leaked but which came out on the morning of the review which is certainly going to cause a stir. Vivienne, would you like to explain to our listeners, in a succinct and preferably witty manner, what the Swedish derogation is?

Vivienne: [Laughter] No, I wouldn't!

Jonathan: No, I didn't think you would.  [Laughter]

Okay, yeah alright, my bad.

Look, the Swedish derogation relates to agency work and I think, particularly as work in manufacturing will understand, how larger employers use agency workers as flexible labour to meet peaks and troughs in demand and that really quite a high percentage of the workforce are not employed by the company, but are employed by the agency and brought in.

The Swedish derogation was brought in because, this all came from European Law and Britain which makes more use of agency labour than any other country howled about it, and brought in something which, funnily enough, originated in Sweden. Which is that provided that the agency workers remained employed by the agency and that in between assignments they got up to four weeks' pay from the agency then the agency didn't have to equalise pay between their workers and the workers at the enterprise at which they were actually working, if you follow.

Now, this has always been highly controversial because in Sweden workers received equal pay in post and 90% of normal pay between assignments. The TUC says that the evidence from UK work places where agency staff are present, is that they don't get nearly so good a deal. This is going to do material damage to the business model, not of the traditional gig companies - traditional gig companies - could we ever have talked about a traditional gig company until about, oh, I don't know 12 months ago! It's not going to do damage to the business models of your couriers and your ride sharers and your plumbers. It's going to do real damage to the business models of industrial employers, large-scale industrial employers and that's going to be a very interesting proposition.

So, I think by way of quick conclusion, in such a deeply ideological area, where there's still an enormous amount of controversy over what workers should be entitled to, what dues they should pay, what the role of government is, what the role of the employer is. Taylor has had a good stab at sorting out some of the issues and providing some interesting thinking here. It's now over to Government, we'll see where we get to.

Zoe, Vivienne, thank you very much.

Vivienne and Zoe: Thank you.