The Workplace Prescription
Workplace Q&As and the latest news in employment law and HR
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Temper Works - An alternative way of working to circumvent employment legislation.
A gig economy company is facing backlash for advising hospitality clients on how to sidestep recent fair tipping laws and potential restrictions on zero-hours contracts by utilising its freelance workforce.
Temper Works, which provides staff to over 5,000 businesses, including Hard Rock Cafe, Alexandra Palace, and Claridge's, is promoting its workforce as an alternative that is “not covered by the provisions of the new tipping legislation.”
Based in the Netherlands and operating in the UK since 2022, Temper Works highlights to businesses that agency workers now need to be part of tip-sharing arrangements. However, it claims that gig workers hired through its platform are not subject to this rule. “By engaging freelancers through Temper, businesses can retain flexible labor without the added costs and complexities linked to tip allocation for agency workers,” reads a briefing the company released last month.
The Employment (Allocation of Tips) Act, introduced last month, mandates that all tips, including those given to temporary agency staff, be distributed among workers. This law came after widespread criticism over high street restaurants deducting money intended for service staff. For example, Pizza Express was reported in 2015 to take a cut of 8p from every £1 given by card, though it later reversed this policy.
The Unite union, which advocated for the tipping rules, suggested that excluding gig workers from tip-sharing might be illegal, as courts might not recognise them as truly self-employed. Bryan Simpson, Unite’s lead organiser in the hospitality sector, criticised Temper Works’ approach, calling it potentially unlawful and morally questionable. He argued that by promoting services designed to bypass well-established employment laws, Temper Works was acting unethically and possibly breaking the law.
Temper Works is also encouraging businesses to utilise its pool of 60,000 freelancers to navigate around a proposed zero-hours contract ban—a major part of Labour’s upcoming employment legislation. Labour’s new employment rights bill proposes that, after 12 weeks, agency workers on zero-hours contracts would be entitled to contracts with guaranteed hours.
In a document from August, Temper Works warned businesses of the challenges presented by the potential reforms. It suggested that using independent contractors as temporary workers would offer flexibility without the “obligations and restrictions” associated with permanent contracts. Another briefing claims Temper can help businesses manage the recent national minimum wage hike, with the chancellor’s latest announcement of a further increase to £12.21 per hour from April 2025. According to Temper, companies can book shifts as short as 60-90 minutes to cover peak times, only paying for the exact time worked.
The government has announced plans to review employment rules to better distinguish between genuine self-employment and other forms of work. A spokesperson for the Department for Business and Trade commented that employers should avoid practices like false self-employment or withholding tips, as these actions could result in significant compensation if challenged in a tribunal.
In response, Temper Works denied Unite’s criticisms, stating that it operates transparently and in compliance with UK law. It referenced a Dutch court’s ruling that Temper is a platform for freelance work rather than an employment agency. The company stated that clients are allowed to share tips with contractors if they choose, though freelancers are typically not covered by the tipping legislation. Temper also pointed out that contractors on its platform receive benefits, including minimum hourly pay and income loss protection for up to 12 months. It noted that, on average, workers on its platform earned £14.09 per hour in September and that shorter shifts of 60-90 minutes are rare.
Temper further argued that the proposed zero-hours contract ban would do little to benefit workers compared to the independent contracting model, which it said allows workers more control over their hours.
Q&As
Genuine questions from real workers
Can my employer take away my shift allowance?
Q. I've been working at my workplace for 13 years. 6 years ago I have been promoted to a shift supervisor role for the new department and I been given a shift allowance for any hours I work regardless shift I am doing. As that role required some shift flexibility. after some time I get another department. so I was in charge of two departments.Now first department is closed but I am still a supervisor for another department and still doing the same shift as before and now my employer wants to take off my shift allowance as first department is closed. Can my employer just take away from me shift allowance if it's part of my contract by just giving me 4 weeks notice and amending my contract?
A. If your shift allowance is part of your contractual terms, your employer cannot simply remove it without following the appropriate legal procedures. Contracts can only be changed if both parties agree to the alteration.
Since your shift allowance has been provided for several years, it is likely considered a contractual benefit. This means that even if your contract does not explicitly detail every aspect of the allowance, its continued provision can imply a contractual obligation through custom and practice. An employer attempting to unilaterally amend your contract by removing this allowance, even with four weeks’ notice, may be in breach of contract.
So, can your employer change your contract?
For your employer to lawfully remove the shift allowance, they would generally need your consent. If you do not agree to the change, the employer has a couple of options, which include:
They could negotiate with you to reach an agreement, possibly offering a different benefit or compensation.
As a last resort, the employer might terminate your existing contract and offer you a new one without the shift allowance. This practice, known as ‘fire and rehire’, must be handled carefully to avoid claims of unfair dismissal or constructive dismissal if you’ve worked there for over two years.
Next steps
Start by discussing the matter with your employer. Explain that you believe the shift allowance is a contractual term that cannot be removed without your agreement.
You must check your contract and any documentation related to the allowance or changes made over the years. This includes any written agreements, emails, or policies that mention the allowance.
If you do not consent to the change, and the employer proceeds regardless, this could be considered a breach of contract. This might give you the right to pursue a claim for constructive dismissal if you feel forced to leave as a result, or to claim for the unpaid allowance.
Continued to be paid after termination. Employer now wants it back!
Q. I was paid 3 months after my dismissal. I called to correct this with the employer, giving them back 1 month upfront. However, they are now demanding £750 a month for me to pay it back. What are my options or obligations?
A. In situations where an overpayment has occurred after dismissal, you have a few options for handling the repayment, especially if the repayment terms set by the employer are not manageable. If your employer hasn’t provided a written agreement on how you should repay the remaining balance, there’s room to negotiate terms that are reasonable for your financial situation. You are not obligated to accept their demand of £750 per month if it would cause you financial hardship.
You can offer a repayment plan that works within your budget. Many people in similar situations propose smaller, manageable instalments, such as £100 or £200 per month, which is often acceptable to employers as long as it shows goodwill to settle the overpayment. Contact your employer in writing, proposing a monthly repayment amount you can afford, and explain why a lower amount is necessary based on your financial circumstances.
To ensure clarity, you should ask your former employer for a breakdown of the overpayment. This will confirm exactly how much is owed, removing any risk of discrepancies or further misunderstandings. Employers generally should provide this information if requested.
Employers do have the right to recoup genuine overpayments, but they also have a duty to act reasonably in their repayment demands. If they refuse a reasonable repayment plan and insist on £750 per month despite financial hardship, simpoly say you cannot pay any more..
If your former employer insists on immediate repayment or threatens legal action, be aware that courts usually look favourably on individuals who demonstrate a willingness to repay through affordable instalments. This strengthens your position if you need to negotiate further or, in a rare case, if the employer were to pursue the matter legally.
Q. how long must i be employed to be able to claim unfair dismissal
A. To be eligible to claim unfair dismissal, you generally need to have been continuously employed for at least two years with your employer. This means two full years without significant breaks in employment, although some brief breaks may be permissible depending on the circumstances (for instance, annual leave or short-term illness doesn’t disrupt continuity).
However, there are certain situations where you don’t need two years of service to claim unfair dismissal. If your dismissal falls under one of the following automatically unfair reasons, you can bring a claim regardless of your length of service:
Pregnancy and maternity: If you're dismissed for reasons related to pregnancy, maternity leave, or any related matters.
Discrimination: If you're dismissed due to discrimination based on protected characteristics like age, disability, race, sex, sexual orientation, religion, or belief.
Health and safety: If you're dismissed for raising health and safety concerns, especially if there’s a genuine risk to yourself or others.
Trade union activities: Dismissal for trade union membership, activities, or even simply expressing an intent to join one.
Whistleblowing: If you're dismissed after reporting wrongdoing at work, such as criminal activity, legal breaches, or unsafe practices, you’re protected under whistleblowing laws.
Exercising statutory rights: If you're dismissed for asserting a statutory right, like requesting flexible working or taking unpaid parental leave.
Each of these situations bypasses the typical two-year threshold, meaning a claim for unfair dismissal may still be valid without two years' service. However, in cases that do not meet these criteria, the two-year rule generally applies.
However, this is the current position and the government has announced a change to the two-year period, basically scrapping it altogether and giving unfair dismissal rights from day one. This is unlikely to happen until at least 2026 (in my opinion!)
Useful Links
The legal bit. . .