The most talked about case of 2016 was an Employment
Tribunal's decision that two Uber drivers were not
self-employed but were workers, entitled to the national minimum
wage and paid holiday – a decision against which Uber has
said it intends to appeal. A similar decision has followed in the
new year, in favour of a cycle courier engaged by CitySprint.
Unions are adopting other strategies with a view to obtaining
statutory protections for individuals in the gig economy –
for instance, the Independent Workers Union of Great Britain is
seeking formal recognition from Deliveroo.
In effect the Uber case was an application to a new business
model of the approach in the 2011 Supreme Court decision in
Autoclenz v Belcher in which the Supreme Court decided
that car valets who were working under written contracts that
purported to make them independent contractors were on the facts of
the situation not independent contractors at all, but employees.
The tribunal in the Uber case took the same approach, looking
beyond the convoluted documentation to the reality of the
situation. The innovative element derives from the context –
a company in the 'gig' economy using a technology platform
to organise its business.
Uber's principal argument was that an Uber driver cannot be
a worker because he or she is never under any obligation to switch
on the Uber App which connects Uber's customers to drivers. The
Tribunal plainly did not accept that argument and was much more
interested in what happened once the App was switched on and
whether after that point Uber drivers were sufficiently subordinate
to Uber to be properly described as workers. Tribunals will always
look at the situation in the round and once the tribunal in Uber
had cut through the 'thicket' of documentation, it was
clear to it that the drivers were being told by Uber what to do and
how to do it in a way that was far more consistent with a worker
relationship than one of self-employment. In the CitySprint case
the employment judge also commented on the documentation used by
CitySprint, describing it as 'contorted',
'indecipherable' and 'window-dressing'.
Aspects of the tribunal's judgment in the Uber case will
resonate with the experience of Uber's customers – they
download Uber's App, not that of the driver, and it is Uber
that collects the costs of the journey from their bank account and
emails them afterwards to confirm that it has done so. If there is
an invoice between the driver and the customer, the customer never
sees it. The idea that Uber is no more than a platform for enabling
customers to connect with thousands of self-employed drivers is
therefore inconsistent in every aspect with the experience of using
the service. It remains to be seen whether Uber can convince the
EAT that the employment tribunal has made an error of law in
reaching its conclusion.
In its judgment the tribunal expressly allowed for the
possibility that technology platforms do not inevitably lead to
worker status. Airbnb and Ebay might be cited as examples of
business which actually do what Uber was purporting to do, namely
facilitate transactions between two third parties with whom they
have no employment relationship. It is a question of looking at all
the facts and features of the arrangement and the reality of what
is actually happening. It remains to be seen whether Uber will make
any changes in order to seek to avoid worker status (it is
appealing the tribunal's decision, so this case has some
distance still to run). Any such steps may well require significant
changes to their trading model – which Uber may be loathe to
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In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
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