Uber Loses Supreme Court Hearing

Uber’s work status battle within the Gig Economy has been ongoing since 2016 when two employees took Uber to an Employment Tribunal. The claimants argued they should be considered workers and as such should be entitled to National Minimum Wage (NMW) whenever they were ‘logged on’.

Uber had defended the case, in line with working practices within the Gig Economy, advising that the claimants were self-employed and so were not entitled to pay between assignments (jobs).

The original tribunal agreed with the claimants that they were workers and not self-employed, and thus were entitled to NMW. This had massive implications for the Gig Economy.

Uber appealed the decision. The original tribunal decision was subsequently upheld by the Employment Appeal Tribunal in November 2017, and again upheld by the Court of Appeal in December 2018.

The Supreme Court has been the latest to ‘wade in’ on Uber and the Gig Economy, again agreeing with the original tribunal that the claimants are indeed workers and as such should be entitled to NMW when they are ‘logged on’.

The Supreme court considered several elements in its judgement:

·Uber set the fare which meant that they dictated how much drivers could earn

·Uber set the contract terms and drivers had no say in them

·Request for rides is constrained by Uber who can penalise drivers if they reject too many rides

·Uber monitors a driver's service through the star rating and has the capacity to terminate the relationship if, after repeated warnings, this does not improve

What is the difference between an employee, a worker and a self-employed contractor?

Employees are entitled to the core legal protections, such as the right not to be unfairly dismissed, the right to a statutory redundancy payment, and notice periods. In short, they get are entitled to full legal protections.

Workers tend to have a casual relationship with their employer and can work ‘as and when.’ There is no obligation from the employer to provide work and in turn there is no obligation from the employee to perform any work. Workers do not get core legal protections as employees do, but importantly workers are legally entitled to paid holiday, rest breaks, a maximum working week and most importantly the right to NMW.

Self-employed people do not benefit from any employment rights.  A contractor is usually self-employed and so not entitled to NMW, any rest breaks or holiday pay. This is because the self-employed person has the control to set their own working week, set their own rate of pay and decide how and when to work.

What does this mean for the Gig Economy?

With lockdown and work from home, more companies are using app technology to organise their workforce and utilise workflow. Overall, more and more companies are subscribing to the Gig Economy. This can be seen by the increasing number of delivery drivers as people are unable to leave their home.

Many companies within the Gig Economy consider that staff are self-employed contractors rather than employees due to the sporadic and flexible work demand.

This recent case reflects that contractors using Gig Economy apps could be considered workers and are not self-employed, dependant on the terms and conditions under which they work.

Basically, the more control you have over a self-employed contractor, the more likely they are to be deemed a worker, and as such, entitled to NMW and holiday pay. If the contactor does not have freedom to set prices, set working hours or have the right to refuse work, they are more likely to be considered a worker.