Unions have accused retailers including Lush, Gymshark and Uniqlo of recruiting ‘freelance’ shop assistants without basic employment rights during the Christmas season, according to the Observer.
These brands are reportedly hiring staff to cope with increased seasonal demand using gig apps such as YoungOnes and Temper, which are being promoted to younger workers by influencers on TikTok.
Activewear brand Gymshark recently posted an advert on YoungOnes for 30 shop assistants for its flagship London store last week, while cosmetics retailer Lush was using the app to look for five checkout staff in Liverpool, the newspaper reported.
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A spokesperson for Uniqlo told People Management that to meet demands during the festive period, it “supplements its existing team” by engaging “independent professionals” who are paid the same wage as permanent employees.
“We acknowledge the value of their contributions and are committed to treating all workers fairly and in compliance with local employment laws,” they added.
‘Worrying new development’
While retailers have always sourced temporary staff over the festive period, they often relied on agency workers in the past. These agencies are required to provide workers with legal rights such as the national minimum wage (NMW), holiday, rest breaks, sick leave and protection against discrimination under the Agency Workers Regulations.
Speaking to People Management, a spokesperson for Temper argued that the platform “empowers independent contractors” by providing them with “flexibility, autonomy and competitive rates” in a way that is “fully compliant with UK law”.
They explained that people who work via Temper can negotiate their rate of pay upwards and have any loss of earnings through illness covered for up to 12 months – protections that they said go beyond those offered by the zero-hours or casual contracts usually relied upon by retail businesses.
But Tim Sharp, employment rights lead at the TUC, described the use of these gig workers by retailers as a “worrying new development”, saying: “It would seem absurd to most people that someone can do a job like working in a shop and not be entitled to basic legal protections.
“There is a big question mark over the employment status of these supposed freelancers.”
He added: “It’s about firms being able to flex staff up and down – this is clearly passing on risk from the business owner to the individual staff member and we think that’s unacceptable.”
Sharp also warned that as these people were supposedly classified as self employed, they would not be protected by the measures included in the government’s new employment rights bill when it comes into force. “At the very moment we’re going to see far stronger employment rights; some operators are coming in and seemingly offering employers a way around both existing and new legal protections.”
Risks to employers
Matt McBride, employment partner at Freeths, told People Management that worker status had been the subject of “considerable litigation” over the years, citing the 2021 Supreme Court ruling that decided Uber drivers should be classed as workers rather than self employed.
“There is no single determinative factor in this test, which leads to a complex employment landscape,” he said.
McBride explained that platform-based models were based on the premise that the relationship between the business and the individual was one of self employment: “The platforms will say that they are just connecting businesses with freelancers and, like any freelancer, the freelancer is self employed and therefore does not have worker rights.”
He therefore warned: “Employers engaging individuals on a self-employed basis need to be mindful of the risks of those individuals subsequently being found to be workers and entitled to worker rights.”
Felecia Wood, associate director of HR consultancy at Croner, added: “There are various tests, derived from case law over the years, that a tribunal uses to determine an individual’s employment status.
“Areas like mutuality of obligation, control and personal service are all key factors that need to be considered when establishing whether an individual is an employee, worker or self employed.”
Wood explained that self-employed individuals miss out on key rights, such as the NMW, statutory breaks, holiday pay and other statutory payments including sick pay. “On top of this, self-employed individuals have limited or no protections when it comes to unfair dismissal, discrimination and unlawful deductions of wages,” she added.
However, Phil Pepper, partner in the employment team at Shakespeare Martineau, argued: “The risks of incorrect categorisation is relatively low with these types of apps where the engagement is for short periods of time, like where they are restricted to the festive period only.
“The risks increase where the individuals are engaged on a longer-term basis. In those cases the risks of being considered a ‘worker’ or ‘employee’ increase and the employer potentially would incur liabilities for holiday pay and sick pay.”
He also noted that many of these staff may want flexibility without long-term commitment, adding: “It also provides younger workers with valuable work experience that they would not otherwise be able to obtain.”
Despite this, Pepper said there were many workers who would like the guarantee of more regular hours “which are not necessarily forthcoming”.
Struan Hepburn, trainee solicitor at Anderson Strathern, told People Management that employers that use these platforms could also face reputational risk. “Like Uber’s star-rating system, workers and retailers can rate one another after each shift,” he explained.
“This means that organisations that try to exploit the gig economy may experience staffing shortages and lower-quality workers. Treating gig workers differently from existing employees may also create a toxic working environment.”
Hepburn added that even if retailers treated workers fairly, they may still be unable to avoid reputational damage “if other employers use these platforms to sidestep their responsibility to treat people fairly”.
He also said the government was planning to introduce clearer guidelines for worker status, which “will make it harder for employers to disguise employment as self employment”, potentially having implications for the status of the ‘freelance’ staff retailers are employing using Temper and YoungOnes.
For further information, refer to the CIPD’s report about reforming employment status and strengthening rights
Source: Retailers allegedly using apps to hire ‘freelance’ Christmas shop assistants without
