It seems like hardly a week goes by without another employer in the ‘gig-economy’ being told by an Employment Tribunal that it actually has to give employment rights to the people that it claims are just self-employed contractors or freelancers finding work through their app.
Workers at Deliveroo, Citysprint and Addison Lee have all been found to be entitled to a range of employment rights – including: holiday pay, paid rest breaks and the National Minimum Wage. Most recently Uber has been trying to turn the tide - arguing in the Employment Appeal Tribunal (‘EAT’) in the case of Uber BV v Aslam (2017), that its drivers are not in fact ‘workers’ as the Employment Tribunal found.
We should be careful not to assume that something is new just because there is a new name for it. The technology driving the gig economy is certainly novel – but the working relationships underlying it may not be. Uber was at pains in front of the EAT to stress that its business model was a technology platform rather than a provider of transport services. In essence, it stated it was the same as that of any other minicab company – only on a more impressive scale. Uber said its drivers are not ‘employed’ or ‘workers’, they simply use the Uber app to be put in touch with customers who need a ride. On this analysis the driver doesn’t work for Uber – Uber is the driver’s agent.
However, this argument was rejected by the EAT when the decision was handed down on 10 November 2017.
The EAT found that following the UK Supreme Court’s decision in Autoclenz Limited v Belcher (2011), an Employment Tribunal is entitled to look beyond the contractual documentation that had described the drivers as self-employed contractors offering their services to passengers via the Uber app. Indeed, the Tribunal was required to determine the true agreement and arrangement between the parties.
Having done so, the EAT found that Uber was not acting as agent between drivers and passengers. Crucially, it also found that drivers could be considered to be ‘working’ for Uber at any time they were logged into the Uber app, within the territory in which they were authorised to work and when able and willing to accept assignments.
Therefore, as workers of Uber, the drivers are entitled to employment rights including: holiday pay, paid rest breaks and the National Minimum Wage.
In view of the significance of the decision, it is likely that it will be appealed to the Supreme Court for further clarification.
The decision should also be considered in light of the recent review conducted by Matthew Taylor. This considered the extent to which modern business practices and the growth of non-standard forms of employment mean that individuals lose out on key employment rights and whether the current definitions of employment status need to be updated to reflect new forms of working. The subsequent report entitled “Good work: The Taylor Review of Modern Working Practices” was published in July 2017 and made a number of important observations and recommendations.
The issue of employment and worker status is now one of the most pressing issues in the UK workplace. Without the barrier and deterrent of fees following the Government’s decision in July 2017 to scrap fees after the Supreme Court’s decision in R (Unison) v Lord Chancellor (2017), it is also highly likely that the number of claims linked to this issue will increase in the Employment Tribunal.
For further information contact Andrew Masters, Head of Employment, on 01227 763939.