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To decide an employee’s entitlement to public holidays you first need to know whether a particular day of the week would otherwise be a working day for the employee. This requires an individual assessment for each employee.  For employees with a fixed work pattern that is easy to determine. For employees who work flexibly this is more complicated. 

The UK Supreme Court has ruled that Uber drivers are 'workers' for the purpose of rights under the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998.

But that’s not as straight forward as it may at first appear.

Different jurisdictions have come to different decisions about whether Uber drivers are employees or contractors.  The US and Australian jurisdictions have determined the drivers are contractors, whereas in the UK they are held to be “workers”. Now our Employment Court has decided one kiwi Uber driver is a contractor, having recently decided in the Leota case that Mr Leota as a courier driver, is an employee.  See here for further information on the Leota case. 

Regardless, the lot of dependent contractors will receive close scrutiny in 2021 with the government promising to “work with unions and employers to develop a better statutory regime to protect dependent contractors”.

What are the Public Holidays?

The answer to that question will vary depending on the employee’s work pattern.

This year Christmas Day and New Years’ Day fall on a Friday so there are no transfer issues there, but Boxing Day and 2 January fall on Saturday, so those public holidays will transfer for many employees.

More than 6000 employee complaints have been lodged with MBIE since the start of March. That's more than 10 times as many as during the same seven-month period last year.

The system is simply overloaded as any new application may not be set down before 2021.

It’s time to consider private mediation services - a fast and effective way to pragmatically deal with such issues so people can move on.  See: https://www.teesdaleassociates.com/services/mediation-and-conciliation-new-service/

Currently there is a lot of misinformation that employees who have taken a COVID-19 test and been advised to self-isolate while waiting for their test result, should be granted special leave paid by the employer.

To be clear, employees who are waiting for a test result, or who subsequently return a negative test result, are not eligible for the Government’s Leave Support Scheme.

A member of our team fell ill this week, showing some symptoms indicative of Covid-19. On the advice of their GP, they were tested for the virus.

The process for the test was straightforward with the GP’s surgery advising a specific time to attend their premises later the same day for a swab test.

Despite high expectations, the new ‘Resurgence Wage Subsidy’, not to be confused with the original ‘Wage Subsidy’ or the later ‘Wage Subsidy Extension’, will not be available to some businesses who are hard hit in Level 3.

That is because you can't receive the Resurgence Wage Subsidy at the same time as you are getting other COVID-19 payments like the Wage Subsidy Extension or the Leave Support Scheme. 

There have been numerous articles concerning the legality of pay cuts by employers during and since lockdown, many of which provide misleading commentary.

One such article advised that “employment law had not been suspended and that any employer wanting to reduce an employee’s pay would need to obtain their consent”.  That is not the full story.  Another was dismissive of the “no work, no pay” principle and supported the Employment Relations Authority’s finding in one case that the employees were “ready, willing and able” to work during lockdown and therefore should have received their full pay for the period in question.

Whether or not investigation interviews should be recorded can be a vexed question.  Following are some of the pros and cons you may wish to consider:

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