You might have seen all the recent coverage of the Uber case.
Uber, the cab hire service which allows users to book and pay for cabs through a smart phone app, was taken to the Employment Tribunal by two of its drivers, James Farrah and Yaseen Aslam, on behalf of a group of 19 Uber drivers. Their claim was that Uber was acting unlawfully because it was not offering holiday or sick pay and it was not paying them the national minimum wage (NMW).
Uber does employ some staff but it also has a fleet of drivers like Mr Farrah and Mr Aslam who work for them on a more ad-hoc basis; logging on to the app to accept driving jobs. Uber had classed these drivers as self-employed.
The recent case centred around whether Uber was right (and there was no employment relationship at all) or whether the drivers should be considered to be workers and so were entitled to be paid the NMW and to receive holiday pay and sick pay as claimed by Mr Farrah and Mr Aslam.
Uber argued that the way in which it contracted with the drivers was inconsistent with any form of employment or worker status. For example, the drivers were under no obligation to log onto the app at any time and even if they were logged on, there was no obligation to accept any driving assignments that were available at that time.
Whilst the Tribunal accepted that the drivers weren’t under any obligations to Uber when the app was switched off, the Tribunal found that: once a driver had logged on to the app; the driver was within an agreed territory; and the driver had suggested that he or she was able to accept assignments, the driver was working for Uber under a worker contract. The Tribunal provided a list of the attributes which it felt demonstrated that a “worker” relationship had been established, including, amongst other things, the fact that Uber penalised drivers for non-compliance with its procedures, the fact that it set and provided routes and fares and that it managed driver performance.
Although a lot of media coverage of the case has incorrectly focused on the issue of employment status, the case is a useful reminder that it is not just employees who have rights at work. There is this category of “worker” which sits between employment and self-employment. Workers are not entitled to the same rights as employees but they have more legal rights than the self-employed including, for example, the right to receive the NMW.
Whilst employment and self-employment might be better known, businesses who use a lot of temporary or ad-hoc labour need to take note of the decision and to be extremely careful if they are trying to avoid employment relationships being created.
The decision is also relevant to those businesses who think that they are contracting with people on a “self-employed” basis. Although the legal position hasn’t changed, the Uber decision is just a timely reminder that at its core, the test of whether someone is employed or not focuses on control and personal service. These tests are well established in law but, as the Uber case shows, they can be difficult to apply in practice and any businesses with large numbers of temporary, ad-hoc workers or self-employed staff should check whether the arrangements that they have in place are legally compliant whether the work is offered face to face or electronically via an app.