The Employment Appeal Tribunal (EAT) has upheld a tribunal’s ruling that two Uber drivers were ‘workers’ and, therefore, entitled to worker benefits such as the National Minimum Wage and holiday pay.
The background
In UK law, ‘workers’ are entitled to a range of employment rights such as the national minimum wage, holiday pay and access to a pension scheme. Full employment rights, however, including statutory sick pay and protection against unfair dismissal, only apply to a category of workers normally referred to as ‘employees’.
For a non-employee to qualify as a ‘worker’ status there usually has to be a contract between the individual and the ‘employer,’ under which the individual undertakes to do work personally, and the ‘employer’ must not be a client or customer of a business operated by the individual.
How does this apply to Uber?
In this particular case, the EAT found that those conditions were satisfied. In particular, it found that the tribunal was entitled to reject the description of the relationship between Uber and the drivers in the written contractual documentation. Rather, the drivers were incorporated into Uber’s taxi business and subject to controls that pointed away from their working in business on their own account in a direct contractual relationship with the passenger each time they accepted a trip. The EAT confirmed that the tribunal had been entitled to consider the true agreement between the parties as not one in which Uber acted as the drivers’ agent.
But the EAT’s decision is unlikely to be the final one. It’s certain that Uber will look to bring a further appeal and it is likely that the case could go straight to the Supreme Court.
What can we learn from this?
The fact that the Uber drivers have won ‘worker’ status, however, does not mean that cases brought by others who work in the ‘gig economy’ will have the same success. In fact, the tribunal that originally heard the case said it did not doubt that Uber could have created a business model which did not involve the drivers having worker status. However, companies that rely on the ‘on demand’ freelance workforce will be keeping an eye on similar cases for any emerging trends that could impact their business model.
Particularly, these employers should review any possible risks of misclassifying the status of their workforce, including the affordability and practicability of paying statutory minimum wage, pension auto-enrolment and holiday pay entitlements.
Additionally, those businesses utilising IT platforms to exercise significant control over ‘on demand’ workers should be aware of the potential challenge in maintaining that such workers are genuinely self-employed, as opposed to one based on worker status (although it will always depend on the circumstances).
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