Employment Status – in praise of fuzziness

As we await the publication of the Taylor Review of Modern Working Practices, one issue that is being discussed is whether the definitions of employee and worker need to be simplified and/or clarified. There is a general feeling that that the current distinction between the two is rather vague and fuzzy – as is the distinction between those who are either workers or employees and the ‘genuinely’ self-employed. Most people instinctively feel that vagueness in legal definitions is a bad thing as it leads to uncertainty. I’m not convinced.

Sarah O’Connor, the employment correspondent for the Financial Times, wrote recently about the need for clarity – arguing that you can’t expect people to ‘plough through reams of case law to figure out if they have been misclassified’ and that ‘there is little point in having employment rights if no-one really knows to whom they apply’.

Its certainly a fair point and it chimes with the Law Society’s submission to the Taylor review in which it urged the clarification of employment status.To its credit the Law Society puts its money where its mouth is and actually proposes new definitions of worker and employee that it feels would lead to greater clarity and understanding. Here is their proposed definition of an employee:

A person in paid work is an employee if:

  1. (a)  they provide work under a contract of service or apprenticeship, whether express or implied; and
  2. (b)  the contract places an obligation on the employer to provide work, and the individual to accept and execute allocated work personally; and

(c) the employer retains control over how the work will be carried out, for example:

  1. where the work will be executed,
  2. how activities will be performed,
  3. the hours during which the work is to be performed; and

(d) the contract provides for regular remuneration by the employer regardless of the level of profit enjoyed by his business.

Be honest. Do you read that definition and think ‘Oh it all makes sense now!’? This attempt simply shows that clarifying employment status is easier said than done. Personally I don’t see how taking principles from leading cases and bunging them into the statute helps us very much. The Law Society’s proposed new definitions don’t really add anything. In fact, look at their proposed definition of a worker:

A person in paid work is a worker if they work (or worked):

  1. (a)  under a contract of employment (or other contract) whether express or implied; and
  2. (b)  the contract places an obligation on the worker to personally perform allocated work or service in a manner stipulated by the employer; and

(c) the contract does not provide that the worker will work exclusively for the employer; and

(d) the status of the employer is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the worker.

It seems to me that the line about performing work ‘in a manner stipulated by the employer’ is rather restrictive and  would actually have the effect of narrowing the scope of the law. Im sure that is not what is intended but it does show that coming up with a simple and clear definition is far from easy.

The essential problem with employment status is not that the definitions are vague, but that there is an incentive for employers (using the term in its broadest sense) to seek to limit an individual’s rights by drafting a ‘self-employed’ contract when in practice it is no such thing.

If we come up with new statutory definitions then that will simply give those employers a clearer target to aim at. If we specify that an employment contract is one which ‘provides for regular remuneration by the employer regardless of the level of profit enjoyed by his business’ – as the Law Society proposes – then some employers will draft clauses providing for pay to be reduced when the employer makes a loss. We would then see a whole new line of cases looking at how much variation in pay would take the contract outside the definition of employment and people would start arguing for the need to clarify the law all over again.

What we need is a system in which the Tribunal is able to cut through the terms drafted by lawyers and look at the reality of the situation. That’s what they try to do already – but they are not free to put aside the written terms of the contract without good reason.

I don’t think it should be a contractual analysis at all.

Where one person sells their labour to another then I think employment law should apply to that relationship unless the ’employee’ can be said to be in business on their own account. Whether they are genuinely running their own business should be a matter for the tribunal to decide, with a key factor being whether they seek to provide their services to the world at large or whether they depend on a particular ’employer’ to make their living.

I don’t see the need for a difference between employee and worker status – let’s just give full employment rights to everyone who works for someone else. Unfair dismissal is a pretty limited right anyway and redundancy payments are modest. I don’t see that this expansion of rights would create any great hardship for employers – and it would eliminate a lot of confusion. While we’re at it we could align tax law with the new definition and remove the incentive for many employees to play along with the rather artificial notion that they are self-employed.

Coming up with a new ‘clear’ definition of employment status is a hiding to nothing. Whatever definition is arrived at will simply create new and profitable areas of doubt and uncertainty. Removing the definitions would limit the scope for employers to draft their way out of employment law and free tribunals up to do justice between the parties. Clarity and certainty sound like good ideas, but in this context they are a mirage and there is no point in chasing them. Let’s go for fuzziness instead.

Fuzzy, but fair.

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Banning employees from wearing headscarves

Let’s get one thing clear at the outset. The European Court of Justice has not said that it is OK to ban Muslim employees from wearing headscarves. It really hasn’t.

But the decision in Achbita v G4S Secure Solutions NV is nevertheless important and controversial. Ms Achbita was dismissed from her job as a receptionist because of her insistence on wearing an Islamic headscarf when she was at work. The employer had a policy of ‘neutrality’ which required employees to refrain from wearing any visible signs of their political, philosophical or religious beliefs in the workplace.

What the ECJ has decided is that the dismissal of Ms Achbita in pursuance of that policy was not direct discrimination on the grounds of religion or belief. The Court based that conclusion on the fact that the rule in issue applied to all employees and all visible signs of political, philosophical or religious beliefs ‘without distinction’. There was no evidence that Ms Achbita was treated differently to any other worker.

Now I’m not entirely happy with that reasoning. The employer objected to fact that Ms Achbita dressed in a way that identified her as a Muslim. The fact that it would also have dismissed a Sikh employee wearing a Turban, a Jewish employee wearing a kippah or a Christian wearing a crucifix is beside the point – and if anything, makes it worse. I think it is a red herring to say that the policy treats everyone the same – it is consciously aimed at people with particular religious beliefs. Of course, it is also consciously aimed at those with philosophical or political beliefs but that is hardly comparable. Wearing a T-shirt with a slogan is not the same thing as wearing something that you believe to be a requirement of your faith.

I can accept that this is a tricky issue – and so perhaps the best way of looking at a policy like this is to consider indirect discrimination. We have an apparently neutral policy – ‘don’t wear anything that identifies your religion, political beliefs of philosophy’, which causes a particular disadvantage to people who share a protected characteristic – like being a Muslim.   The issue under the Equality Act 2010 is then whether the employer can show that its policy is a ‘proportionate means of achieving a legitimate aim’. The way in which this is approached by the ECJ is to ask whether the means adopted by the employer of achieving the aim are ‘appropriate and necessary’.

For reasons that are not entirely clear, the ECJ was not asked about indirect discrimination by the Belgian court, but it nevertheless thought it would be useful to give some guidance.

The Court said that a desire to display a policy of political, philosophical or religious neutrality ‘must be considered legitimate’. Further, translating that policy into a rule about how employees dress is appropriate – providing the policy is pursued in a ‘consistent and systematic manner’. As to whether the policy is ‘necessary’ the ECJ said that that would depend on whether it was limited to employees in a customer facing role. If it was, then the policy would be doing no more than was necessary to achieve the legitimate aim. The Court suggested that the Belgian court could then consider whether, instead of being dismissed, Ms Archbita could have been offered a role that did not involve interacting with customers.

Personally I’m not convinced that hiding Muslim employees away from customers is the best way to go here. In fact I have a problem with the whole ‘neutrality’ question. Excluding anyone from a customer facing role if they are visibly of a particular faith doesn’t seem very neutral to me. I certainly can’t see the argument working in Britain. Our approach to equality is based more on diversity than neutrality and I can’t imagine a tribunal looking favourably on an employer sacking an employee who is visibly Muslim, Sikh or for that matter visibly anything.

Neutrality has a cultural meaning and significance in Belgium and some other European countries that it does not have in Great Britain (Northern Ireland is a special case where the idea of a ‘neutral’ workplace is a key part of the fair employment regime). So just because the ECJ thinks that this Belgian employer has established a legitimate aim, that does not mean that a British Tribunal should also accept a similar policy as being legitimate.

There are of course reasons why particular items of religious dress may be inappropriate for the workplace – see the 2007 case of Azmi v Kirklees Metropolitan Borough Council for an example of an employer legitimately objecting to an employee wearing a veil at work. But I would expect a British Tribunal to focus on the practical impact of the clothing in question, rather than the message it sends. I struggle to think of jobs in which wearing a headscarf would cause genuine practical problems.

So my view is that a policy which ‘bans’ headscarves at work will be unlawful. We could write a thesis or two about whether it would amount to direct or indirect discrimination, but the result is the same. You shouldn’t ban employees from wearing headscarves (or turbans, or crosses or kippahs) unless those items cause genuinely prevent the work from being done properly or safely. In the vast majority of cases, they won’t.

Posted in Equality Act, EU law, Indirect discrimination, Religion in the workplace, Uncategorized | Tagged , , , | 3 Comments

Pimlico Plumbers and the ‘self employed’ worker

Employment status is clearly going to be this year’s hottest employment law issue.

tap

Just last week the Government published its Employment Status Review. It is dated December 2015 so it has been sitting on someone’s desk for over a year. That certainly isn’t because it is too radical. It reads like a dissertation written by a student struggling to get to grips with the decades of case law on the difference between employees, workers – and people who are neither. Its main conclusion is that ‘it’s all very complicated’ and it’s hard to disagree. However the Review does not go on to propose any change in the law. It ends with a ‘more work is needed’ conclusion which is the policy equivalent of ‘well it beats me’.

So Charlie Mullins, the owner of Pimlico Plumbers, is in good company when he says that ‘we can’t get our heads around this word ‘worker’ and what it means’. His comments come after the Court of Appeal upheld a Tribunal’s finding that a ‘self employed’ plumber that he engaged was a ‘worker’ and able to claim paid holiday under the Working Time Regulations 1998 and disability discrimination under the Equality Act 2010.

As with many unsuccessful parties, Mr Mullins’s first reaction is that he will appeal to the Supreme Court. But he won’t be allowed to. The case of Smith v Pimlico Plumbers is high profile – but not legally ground-breaking.  Mr Smith was not an employee, but he was a worker. It may seem odd to Mr Mullins that a ‘self employed’ plumber can qualify as a worker, but it’s a common enough finding in the world of employment law.

[Added 9 August 2017:

Ha! Shows what I know. The Supreme Court has now given permission to appeal. I’m genuinely surprised by this as I don’t see any point of law here; the case turns on its facts. Perhaps the Supreme Court is looking for an opportunity to ‘sort out’ worker status. If so, I suspect Mr muslin’s won’t like the eventual outcome, but we shall have to wait (for about a year) and see.]

The main reason that Mr Smith was held not to be an employee was that the employer was not obliged to offer him work on any particular day and he was not obliged to accept any particular job. More convincing, to my mind, was the fact that he was able to arrange his business affairs to his own advantage. He was responsible for obtaining materials and supplies himself and could charge his employer a mark-up on materials that he then used on a job. He also deducted business expenses for tax purposes – including for the use of one of the rooms in his house as an office and payments made to his wife to cover admin.

These factors certainly seem to put him outside the accepted definition of an employee. But there is nothing odd or contradictory about him still being classed as a ‘worker’. All that is needed is an obligation on him to perform work personally, with the caveat that the ’employer’ should not be the client or customer of a business that he was operating. After a detailed examination of the contract and associated documents the Tribunal held that he met that definition and the Court of Appeal has agreed. Legally there is nothing much to see here. This is just one more example to add to the many that have built up over the decades.

Mr Mullins has criticised Mr Smith for wanting to have his cake and eat it – to take the benefits of self-employment but also want the protection of employment law. That, to be frank, is a bit rich. If there is any ‘cake eating and having’ going on it is surely on the part of the employer. It engages plumbers to wear its livery and conform to its standards while providing services to its customers. Those plumbers must be available for work on a full-time basis and are required to ‘maintain a high standard of conduct and appearance’ at all times. They are also subject to the rules and policies set out in a company manual. In a number of respects, Pimlico Plumbers behaves as though it is an employer of plumbers. It is hardly in a position to complain if that carries through into some of the legal obligations that being an employer entails.

Frankly, I find the case law on employment status downright tedious and I would be delighted if we could just rethink the whole thing. We have a whole suite of employment laws – but have we thought properly about who should they protect? If we started from scratch would we really base our answer on issues like ‘control’ or ‘mutuality of obligation’? Why should the fact that a worker has the right to nominate a substitute mean that he or she does not qualify for paid holidays? Why should depending on more than one ’employer’ to make a living as a freelancer mean that you have no protection against discrimination? Why should the fact that someone chooses when and how they do their work mean that we can dispense with their services without behaving reasonably?

The Employment Status Review does not pose these questions. But I am more hopeful that the Review of Employment Practices in the Modern Economy being led by Matthew Taylor might. It would be good to see some really fresh thinking on the issue.

Perhaps we should not expect too much, however. It is difficult to see how you could redesign the system without expanding the scope of employment rights. Would the Government really be prepared to increase the burden on business in this way? My fear is that Matthew Taylor will come up with something radical and forward thinking and the Government will respond by saying ‘well it’s all very complicated’ and ‘more work is needed’.

 

Posted in Employment status, Uncategorized | Tagged , , , , | 2 Comments

The Range of Reasonable Responses Podcast

So I thought I’d give podcasting a try.

Since talking about employment law is essentially what I do it seems to make sense to do  things where I talk rather than write – and I thought it would be a good opportunity to look at some wider issues than the ones I write about on this Blog.

In an opening series I’m looking at classic employment law cases like BHS v Burchell, Polkey, James v Eastleigh and others as well as the way in which the courts have dealt with sex discrimination in dress codes.

If that sounds interesting then you can find the Range of Reasonable Responses Podcast here

You can also subscribe through iTunes if that’s how you listen to your podcasts. Just search for a ‘Range of Reasonable Responses’.

I’ll still be writing on this blog when employment law hits the news, so don’t go away!

 

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Can you afford to ignore the Gender Pay Gap Regulations?

Actually, I think you can.

Probably.

I mean what’s  the worst that can happen? While other large employers publish their gender pay gap information you simply sit back and say. “Not for us, thanks, we’re fine.”

Of course many people will be disappointed in you. Some may even be angry and there might be ‘damaging publicity’. But if you don’t care about those things, can anyone actually do anything about your failure to publish the information that is required?

mind-the-gap

The  Equality Act 2010 (Gender Pay Gap Information) Regulations 2017  don’t impose any sanction for failure to comply with their requirements. In fact, the Regulations don’t even seem to contemplate anyone not complying with them. There is nothing in the Regulations themselves to say what happens if an employer just chooses
to ignore them altogether.

The Government has, however, tried to create the impression that the Regulations have some teeth by making this  point in the explanatory notes:

Failure to comply with an obligation imposed by these Regulations constitutes an ‘unlawful act’ within the meaning of section 34 of the Equality Act 2006 (c. 3), which empowers the Equality and Human Rights Commission to take enforcement action.

So the Equality Commission can enforce the Regulations by taking action against employers who fail to comply?

I’m not convinced.

This is an assertion made in some explanatory notes. It is not part of the Regulations themselves.  This is important. The Regulations do not provide that a failure to comply is an unlawful act; the Government is merely asserting that. And I think they are wrong.

Section 34 of the 2006 Equality Act (this Act sets up the Equality Commission and should not be confused with the 2010 Act which actually contains the substantive law on discrimination) defines the word ‘unlawful’ as meaning ‘contrary to a provision of the Equality Act 2010’. So, for example, an act of direct or indirect discrimination will be an unlawful act. The Commission then has powers to investigate employers who are suspected of committing unlawful acts and issuing them with notices or ultimately taking legal action aimed at preventing them from committing further unlawful acts in the future.

Is a failure to comply wth the gender pay gap regulations an unlawful act? What provision of the Equality Act is it ‘contrary to’? The Gender Pay Gap Regulations are issued under s.78 of the Equality Act. But s.78 does not require an employer to do anything or prohibit an employer from behaving in a particular way. It merely gives the relevant Minister a power to issue regulations which require employers to publish information. If an employer doesn’t publish that information then they will be in breach of the Regulations – but they will not be in breach of a provision of the Equality Act. Section s.78 does not impose the requirement, the Regulations do.

Section 78 itself acknowledges this fact. Look at s.78(5):

(5) The regulations may make provision for a failure to comply with the regulations—
(a) to be an offence punishable on summary conviction by a fine not exceeding level 5 on the standard scale;
(b) to be enforced, otherwise than as an offence, by such means as are prescribed.

This shows that Parliament intended that the issue of the enforcement of Regulations should be set out in the Regulations themselves. It could have added that a failure to comply with the Regulations would be deemed to be an unlawful act within the meaning of the 2006 Act – but it didn’t.

When Parliament adopts the Regulations it will have chosen to make no provision for a failure to comply with them. This attempt to make out that the Equality Commission will nevertheless swoop in on any recalcitrant employers is just misleading. Even if the power were there, the Commission is hardly resourced to police the compliance of thousands of employers up and down the country.

Now I’m not arguing that employers should just ignore the Gender Pay Gap Regulations. That could cause all sorts of awkwardness. But in deciding how much resource and energy to devote to strict compliance with them it is perhaps worth bearing mind that there is no realistic way of challenging the figures that an employer comes up with.

Employment law is going through a bit of a lean patch at the moment and Regulations like these can be seized on with great enthusiasm by those of us with a living to make advising employers on how to comply with the law. But let’s not make more out of these Regulations than they deserve. They don’t create real legal obligations and (whisper it) will do little or nothing to reduce discrimination or increase equality. A sense of perspective is needed here, I think.

NOTE: All of the above applies in relation to the Regulations applying to employers in the private sector. Similar Regulations are also being introduced which will apply to public sector organisations with 250 or more employees. They will be much harder to ignore as they will form part of the employer’s equality duty under the Equality Act 2010. While that can’t be enforced by individuals per se, bodies could be vulnerable to judicial review procedures if they do not comply with their duty.

 

Posted in Equal pay, Equality Act, gender pay gap | Tagged , , , , | 2 Comments

Can We Ban Christmas Travel Chaos?

screenshot-2016-12-18-16-58-13As we face a Christmas of discontent, Ministers are, according to the Sunday Telegraph,  coming under pressure from backbenchers to introduce laws to curb strikes in important public services. Which is odd really, because they already have.

The Trade Union Act 2016 will require strikes on public transport to be supported by at least 40 per cent of those entitled to vote in the industrial action ballot. The relevant section is not actually in force yet, ]but the Government has published draft regulations in preparation for it coming into force in March 2017. That can’t affect current disputes, however, because the new rules can only apply to new ballots. They can’t be applied to ballots that have already taken place. In any event, you might think that it’s a little early for the Government to come under pressure to take any further action. Surely they at least want to give the 2016 Act a chance to come into force before they start on the next one?

That seems to be The Government’s view. This morning the Guardian reports that No 10 is trying to distance itself from any suggestion of emergency legislation. Apart from anything else, this isn’t an emergency. A few one day strikes on a trainline in the south of England and disrupted air travel over the Christmas holidays is inconvenient if you happen to be affected. We should save the word ’emergency’ for rather more cataclysmic events. Nevertheless, the pressure from backbenchers does suggest that they don’t think that the Trade Union Act goes far enough. Or maybe there are signs that it won’t achieve the result they were hoping for.

screenshot-2016-12-19-07-53-37The stated purpose of the new rules on ballot thresholds was to ensure that industrial action in important public services had the democratic support of ordinary union members. The suggestion was that workers were being called out on strike when only a small proportion of union members had actually participated in the balloting process. But the strike ballots relating to the disruption over Christmas all seem to have had high turnouts and a high level of support for action. In fact if we look at those supporting strike action as a percentage of those entitled to vote (as opposed to actually voting) we get the following:

  • RMT/Southern Rail ballot: 77%
  • ASLEF/Southern Rail ballot: 67%
  • UNITE/BA ballot: 47%
  • PPU/Virgin ballot: 70%

So all of these ballots would meet the standard imposed by the Trade Union Act 2016. I can’t find the turnout figure for the Unite / Swissport ballot, but 62 per cent of those voting, voted yes so it would only take a turnout of about 67 per cent to meet the Trade union Act threshold.

(It is worth just pointing out – again – that the vote for Brexit was only supported by 37.4% of those entitled to vote, but you don’t see the Government questioning the democratic legitimacy of the referendum do you?) 

If  the point of the Act is to ensure that industrial action has proper democratic support, then surely these figures should be welcomed? Shouldn’t we say – ‘well its all very inconvenient, but its clear that this action has the support of union members, so perhaps the two sides just need to get together and reach a settlement?

It seems not. And that rather lets the cat out of the bag doesn’t it? The real point of the Trade Union Act was not to make strike action more democratic – but to make it harder to call. If the unions respond to this by ensuring that they actually have the support of their members – well that’s just cheating. Chris Grayling talked about the Southern Rail dispute on the Today programme last week and said:

“it is, unfortunately, a lawful strike’.

Telling, don’t you think?

So before the Trade Union Act 2016 has come into force we can already see the outlines of the next Trade Union Bill. The target now will not be the democratic mandate for strike action , but the taking of action itself. This from the Sunday Telegraph:

Dozens of Tory MPs favour tougher rules which would bar unions that represent “critical” industries from calling strikes unless they are “proportionate”. Many also want a “minimal requirement” that would force unions to run at least half of all usual services even when they are striking.

This gets us into the deep waters of international law – and that may be why the Government currently seems to be resisting the calls for further reform.

Banning strike action in essential public services is common practice across the world and well established. After all, the police cannot go on strike and neither can the army. But the International Labour Organisation has always taken a rather strict view of what counts as an essential public service, limiting it to those services the  “interruption of which would endanger the life, personal safety or health of the whole or part of the population”. It’s a struggle to see train drivers or baggage handlers being squeezed into that category.

However the ILO Committee of Experts has also countenanced rules requiring the maintenance of minimum levels of service in services of “public utility”. Any such requirement would have to be strictly limited, however. According to the ILO:

the service required must genuinely and exclusively be a minimum service, that is one which is limited to the operations that are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear

I don’t think such limited measures are quite what those agitating for new restrictions have in mind.

Of course,  the last Conservative Government was unconcerned by complaints that the UK was failing to comply with ILO conventions. But then, the last Government was not just about to leave the EU and face the prospect of the UK becoming a stand-alone member of the World Trade Association. The WTO has affirmed the importance of core labour standards and recognises the ILO as the appropriate body for determining what they are. If we run into trouble with the ILO there would be a clear risk of that spilling over into a dispute about our position in the WTO and that could turn into a very big deal indeed. Leaving the EU does not mean we can simply ignore international standards – not if we want to trade with the rest of the world. I think the Government knows that it needs to steer clear of this whole area until the dust from Brexit has settled.

Meanwhile, if you’re travelling the Christmas, comfort yourself that any disruption has more democratic support that our decision to leave the EU.

Happy Holidays.

 

Posted in BREXIT, Industrial action, Trade Union Bill | Tagged , , , , , | Leave a comment

Why Uber lost in the Employment Tribunal

 

uber

Uber drivers are not employees and don’t let anyone tell you different.

On the other hand,  in Aslam & others v Uber BV and others the Tribunal did hold that they were ‘workers’.

Being a worker is different from being an employee. Employees have the right not to be unfairly dismissed as well as a bunch of other rights including maternity leave, redundancy pay and the right to request flexible working. To be an employee you have to be engaged under a contract of employment or apprenticeship and there is a whole series of factors to look at – the most important being the extent to which your activities are controlled by the employer. In this case, the huge flexibility that Uber drivers have about when they choose to work  – and the fact that they have to provide and maintain their own car  – would make claiming employee status very difficult. But, as it happens they are not even trying to. Instead, they say that they are workers.

Workers are a sort of hybrid. They can still be classified for tax purposes as self employed but are regarded as ’employed’ for the purposes of some key employment rights such as the right to be paid the minimum wage and rights under the Working Time Regulations (including the right to paid annual leave).  It is these rights that the Uber drivers are claiming, so it is worker status rather than employment status that is key.

What makes you a worker?

To find out whether an individual is a worker or not you basically have to ask three questions:

  • Is the individual working under a contract?
  • is that a contract under which they must personally provide work for the ’employer’?
  • is the ’employer’ best described as a client or customer of any profession or business undertaking being carried out by the individual

For an individual to be a worker the tribunal must answer ‘yes’ to the first two questions and ‘no’ to the third.

So how did the Tribunal reach the conclusion that Uber drivers were ‘workers’? Well, there was never any real doubt that there was a contract between Uber and the drivers and the Tribunal held that when the drivers turned on their Uber App they were working under that contract. Uber argued, however, that the drivers were working directly for the customer and that the app merely facilitated that work. They were not providing work for Uber as such.

Mark Littlewood of the Institute of Economic Affairs agrees with them. He put it this way:

“It’s a mistake to think of Uber as an employer – it is simply a platform that allows drivers and customers to meet and trade. By harnessing the power of the app, drivers are able to work for themselves; they set their own working hours and decide with whom they will do business.

“Uber is no different from the dozens of other sharing platforms, such as Airbnb and eBay. It would be laughable to suppose that those who run their business through eBay should expect sick pay and holiday leave from the tech firm”

It is not entirely clear that Mr Littlewood has actually read the Tribunal’s decision which deals very specifically and in some detail with whether Uber is simply a platform that allows drivers and customers to meet and trade. And it would indeed be laughable to think that those who trade through eBay would be held to be workers based on the Tribunal decision in this case. Nobody who read the decision itself would imagine for a moment that such an outcome was even possible.

Is Uber just a trading platform?

There are in fact two leading cases on (almost) this issue. In Chen Yuen v Royal Hong Kong Golf Club the Privy Council (House of Lords hearing a Commonwealth Case) held that a caddie working on a golf course was actually trading directly with individual golfers and was not working for the golf club itself. More recently in Stringfellows Restaurants Ltd v Quashie the Court of Appeal held that a table-side dancer was engaging directly with customers and that Stringfellows was merely facilitating that by administering the payments and providing a venue.

Uber naturally relied on these cases in arguing that they were merely acting as a ‘platform’ rather than an employer. However, the Tribunal dismissed that argument after a very detailed consideration of the relationship between Uber and its drivers (the possessive pronoun is important here).

A big part of the case comes down to how Uber projects itself to what world. When you use the Uber app as a customer do you really think that you are being put in touch with a driver with a view to negotiating a journey for an agreed price? The Tribunal said that, on the contrary, Uber makes it clear that you are booking a ride with one of ‘their’ drivers. Uber is not just a marketplace or platform, it is a service offered to the public. That service is delivered entirely by Uber drivers and Uber is very fussy about who those drivers are, what kind of car they drive, what route they take to their destination and how much they charge. Drivers are free to work whenever they want – but that is not in itself inconsistent with worker status. In any event, drivers are discouraged from rejecting jobs assigned to them or cancelling jobs where it turns out they don’t like the customer’s destination.

I’m sure if Mark Littlewood were to think about this he would see that there is a big difference between Uber and eBay or Airbnb. With both of those businesses the end product is something owned by individual provider and the actual work done by that provider is incidental to what is being sold to the customer. With Uber, the ride provided by the driver is the very product that Uber markets to its customers

As for Chen Yuen and Quashie, the Tribunal took the view that in those cases – both concerned with employee, rather than worker status – there was a main business operated by the employer (it turns out Stringfellows is actually a restaurant, who knew?) and the service provided by the individual was incidental to that business. In each case there was a real sense in which the business was offering the contractor an opportunity to come on to its premises in order to meet and deal with customers (personally I think that was a rather questionable finding in Quashie, but there you go).

Uber, by contrast, is not just giving customers the opportunity of finding drivers who happen to be in the area and available for hire. It is committed to providing an excellent rider experience – it says so itself – and it can only do that through its drivers. It undertakes to provide that service to its customers and does that by allocating a driver to them. It asks individual drivers to agree to take its customers to their destination and in that sense the drivers are performing work ‘for’ Uber.

Oh, Come Off It!

As for the third question,  the tribunal dismissed as completely unrealistic the idea that drivers are running their own business and Uber is one of their customers or clients. It really is worth reading the decision in full to see the full argument (which is rather elegantly written), but essentially the Tribunal says ‘Oh, come off it!’.

This is a good example of how a Tribunal will cut through the verbiage produced by an employer who is trying to convince everyone that they are not really an employer at all. Simply describing yourself as a software company or a trading platform will not be enough to persuade a Tribunal that that is indeed what you are. It is the reality of the situation that counts and surely the reality of working as an Uber driver is that you, well,  work for Uber.

As for what happens next, I am sure that this case will go to the EAT, the Court of Appeal and perhaps beyond that to the Supreme Court. That process will probably take well over a year, so we will be able to keep arguing about this for some time to come. There is every possibility of the decision being reversed (possibly more than once) but if I were Uber I would be figuring out how to build the calculation of holiday pay and the minimum wage into my driver app.

 

 

 

 

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