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Consumerisation of Work

Jonathan Maude, Chair of the UK/EU Employment Law Committee - Vedder Price

How realistic is the concept of consumerisation of work? While there are some similarities between the legal position of a consumer and an employee such as, protections, terms and conditions, trial periods etc., there are also significant differences.

You can’t “purchase” three jobs in different colours and/or sizes and keep the one you prefer, or get your money back if you don’t like your job or feel it doesn’t live up to your expectations. That may be an over-literal interpretation of consumerisation of work as a concept but it highlights the difficulties in uniting the customer and employee experiences. For example, how can an employer satisfy the wants and needs of both employees and customers, if their requirements are contradictory. Where would we be if waiters and chefs didn’t have to work at the weekend, or GPs only worked 9 to 5? A hard-boiled analysis of the affinity between the consumer or purchaser of goods and services and the those undertaking work, makes the concept of consumerisation appear fanciful…or is it?

When considering the concept of consumerisation of work there may be more similarities than first appears. From a legal standpoint both consumers and “workers” or employees have the benefit of legal protections. Consumers are protected by a myriad of consumer protection legislation where damages for faulty goods can result in claims worth millions of pounds. It is also not unusual to see wholescale recalls of goods where washing machines or cars have blown up or have proven to be faulty. The ability to buy goods on line, try them out (or even wear them out) and return them seems unfettered. This appears at odds with the working environment, but is it.?

Employers are governed by similar legislation with respect to employees in terms of employer liability laws and provision of safe equipment and systems of work etc. There are also statutory protections against unfair dismissal, employees who may be pregnant have the right to medical health assessments, disabilities need to be accommodated within the work place and equality laws generally are all pervasive within the working environment. Additionally, there are also implied terms in an employment relationship around ensuring a safe system of work and providing competent co-workers. Is this very different from the expanse of legislation which protects consumers?
Organisations using “workers” have also seen a significant increase and expansion in the levels of protections on offer for “workers”. The idea is that it empowers the individual with the freedom to accept or reject a “gig” as they see fit. This does not appear very different from “purchasing three jobs in different colours and/or sizes and keep the one you prefer”?

The emergence of new economies into the labour market, which lean heavily on short-term or on-demand work, often with the prominence of apps to facilitate work, has meant that companies operating in this environment have sought to engage individuals as self-employed freelancers. Although cost-effective for many businesses, the freedom to “gig” can present difficulties for those who work in these economies as they may not historically have been afforded the same level of protections or statutory rights which are afforded to employees and workers. However, over recent years we have seen individuals seeking to challenge their status as self-employed in the tribunal and courts system.

In recent years, a clear trend has emerged of businesses trying and failing to persuade the courts that individuals performing services for them are really self-employed. As a result, businesses need to be aware that this category of “worker” is very much like a consumer and we have seen extensive extensions of rights and protections being afforded to this category.
Perhaps the biggest profiled case, due to the public name-recognition of the business involved is the long running Uber case (Uber BV v Aslam [2018] EWCA Civ 2748). In this case, a number of Uber drivers brought claims challenging their employment status and seeking protected rights afforded to “workers” such as receiving the national minimum wage and rights as to working time including the right to statutory holiday pay and rest breaks. Uber argues that it is merely an intermediary service which provides booking and payment services through its app. The most recent decision at the Court of Appeal ruled that in fact Uber runs a transportation business and engages drivers to provide their labour through which the business delivers its services and makes money. The drivers’ status has been confirmed as that of a worker status. Uber will be making its appeal to the Supreme Court in July 2020, so much will hinge on where the court lands its perspective on this issue.

One case that has gone against the trend is that of Deliveroo (Independent Workers Union of Great Britain v RooFoods Ltd (t/a Deliveroo), which has been subject to claims by riders who sought worker rights and in particular the right to collective bargaining and trade union recognition. The fact that there was an almost absolute contractual right allowing each rider to provide a substitute to provide their services was sufficient for the courts to rule that they were genuinely self-employed. As a result the “worker” protections were not afforded to these individuals.
In addition to the above it is worth noting in December 2019, in a shock decision, an employment tribunal ruled that protection under the Transfer of Undertakings (Protection of Employment) Regulations 2006 extends to “workers” as well as “traditional” employees. The decision raises issues for employers, particularly on the transfer of an undertaking as it could mean that the pool of “employees” that automatically transfer to the new undertaking is far great than may have been expected.

The government’s “Good Work Plan” published in 2018 followed a review into modern working practices which recommended reform of employment status and workers’ rights. One of the key reforms which will take place in April 2020 is the entitlement of all workers, not just traditional employees, to a written statement of terms of their contract. A new Employment Bill was announced in the Queen’s Speech in December 2019, which included a number of measures which had been recommended as part of the Good Work Plan, aimed at extending worker protections. These included the creation of a single labour market enforcement body to help ensure workers are aware of and can better enforce their rights, requiring employers to pass on all tips and service charges to workers and the right for workers to request a more stable contract after 26 weeks’ service.

Leaving working “protections” aside, another area where work may be seen as becoming more “consumerised” is the “shop window”. How different are the steps work organisations might go to in order to attract talent as opposed to organisations looking to sell their goods or services? The ambition to treat employees like customers by anticipating their wants, needs and desires and delivering in a way that not just satisfies but delights them is the aim of all recruitment effort. In the war for talent, employers that are able to achieve this aim by creating roles and benefits packages that resonate with potential employees will undoubtedly reap the benefits.

Ultimately what matters is authenticity and backing-up promises with effective structures and policies. Once the employee or “worker” is engaged by the organisation they can become brand ambassadors for the organisation. The access to social media and the freedoms this gives to air views is no different for those at work as opposed to those writing a report on a dinner experience or holiday undertaken. Granted, employers may not be awarded specific star ratings out of five, but the propensity to air views and thoughts on “the worst employer in the world” is not that far removed.

Unhappy employees may appear to have less recourse against a company compared to unhappy customers and the only practical avenue open to employees that feel their new employer has not lived-up to their promises may be to leave, but social media is an effective channel for dissatisfied employees to express their ire with employers and this carries significant risk to the reputation of employers and their potential to hire good people in future.

This again is no different from an organisation selling goods and services which will spend millions of pounds in advertising and building a brand and then taking extensive steps to prevent damage to that brand. Aggrieved employees or “workers” can cause equal amounts of damage to reputation.

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