The “gig economy” is characterised by work performed on a short-term/temporary basis, in contrast to more traditional long-term roles. As the “gig economy” has grown, so too has the case law governing the employment rights of those working in that sector. In the UK, these people are either “employees” (i.e., having full employment rights), “workers” (having some employment rights—e.g., not to be discriminated against, the right to vacation and sick pay, and to be paid the minimum wage) or “self-employed” (having very limited rights). Traditionally it was thought that short-term workers were self-employed and as such did not have employment rights. Following an Employment Tribunal decision against Uber in October, though, two cases this year have further clarified the area.
In Pimlico Plumbers v Gary Smith, despite the claimant plumber’s employment contract expressly referring to the claimant as self-employed, the Court of Appeal on the facts decided he fulfilled the “worker” criteria. Both this case and the Uber judgment highlight the willingness of the courts to look beyond the words used in such contracts to the actual circumstances. In particular, the fact that the claimant was generally required to perform the work himself and that he was required to be available for work a minimum of 40 hours-per-week were significant.
The Employment Tribunal in Dewhurst v CitySprint recently similarly found that a courier with CitySprint was a worker and not self-employed.
These cases put a spotlight on the business model under which operatives are intended to appear to clients of the business as working for the business, but at the same time the business itself seeks to maintain that there is a legal relationship of independent contractor rather than employer and employee or worker.
What Should Employers Do Next?
If you seek to retain workers on short-term contracts or on a temporary basis, and you are assuming that they do not have employment rights (e.g., you do not give them paid vacation), then it might be prudent to seek legal advice on the set up and your workers’ rights.