EMPLOYMENT

Mixed Fortunes in the ‘Gig Economy’

In a month which saw two significant and opposing judgments relating to employment status and the so called ‘gig economy’ it would be remiss of us to consider any other topic in this month’s update.

Uber B.V. and Others v Mr Y Aslam and Others [2017] UKEAT/0056/17/DA

In the latest instalment of the well publicised claims issued by Uber drivers the Company appealed the Employment Tribunal’s decision that its drivers were workers and therefore entitled to holiday pay, sick pay, minimum wage and union recognition among other protections.

In the EAT Uber’s grounds of appeal included arguments that the Tribunal had erred in law, ignored the contractual relationship between the parties and furthermore that it relied on ‘regulatory requirements’ as evidence of worker status.

Rejecting these arguments, the EAT upheld the Tribunal’s decision. The EAT commented on certain aspects of the relationship which pointed towards the status of worker including the obligation on drivers to accept at least 80% of trip requests, the contents of a welcome pack issued to new drivers, warnings issued for cancelling trips once accepted, penalties imposed and its policy regarding financial loss. The EAT held that the ‘ET was entitled to conclude there was a contract between ULL and the drivers whereby the drivers personally undertook work for ULL as part of its business of providing transportation services to passengers in the London area’.

Independent Workers' Union of Great Britain (IWGB) v RooFoods Limited T/A Deliveroo TUR1/985(2016)

In contrast to the above, just four days later the Central Arbitration Committee delivered its judgement in which it concluded that Deliveroo riders are not workers but self-employed contractors.

The CAC, the non-departmental Government body that resolves collective worker disputes in England and Wales decided that because the riders had the right to allocate a substitute to work in their place, they were self-employed.

The judgment stated that ‘The central and insuperable difficulty for the union is that we find that the substitution right to be genuine, in the sense that Deliveroo has decided in the new contract that riders have a right to substitute themselves both before and after they have accepted a particular job; and we have also heard evidence, that we accepted, of it being operated in practice.’

What these two contrasting outcomes (albeit in different courts) demonstrate is that Courts will go beyond contractual arrangements to determine the true working relationship at issue. Whether an individual is an employee, worker or self employed requires a holistic consideration of a day to day relationship to include factors such as the nature and length of the engagement, control, mutuality of obligation, how integrated an individual has become into a company, whether the individual is required to perform the service personally amongst others. Although a right to substitute was sufficient to counter worker status for Deliveroo Companies should be aware that each relationship will be judged on its own facts.

If you require advice or guidance in relation to employment status please contact Millar McCall Wylie on 02890 200050 and ask to speak with a member of our Employment Team. 

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