Uber – The Appeal
Back in November 2016 we reported in our blog that a decision had been reached regarding Uber and its drivers, represented by the GMB Union. The GMB Union argued that the drivers were not self employed ‘partners’ but were in fact workers entitled to the basic worker’s rights and the Employment Tribunal agreed.
The Uber case has since been granted the right to appeal against the landmark Employment Tribunal’s decision declaring that the drivers should indeed be classed as workers and granted with rights such as minimum wage, sick pay and paid holidays.
The two-day hearing is set to take place at the Employment Appeal Tribunal in September 2017 with Uber to argue the case that the 40,000 self employed drivers in the UK are free to work with more flexibility than private hire drivers whom are self employed.
Uber issued a statement declaring that “The vast majority of drivers who use Uber tell us they want to remain their own boss as that’s the main reason why they signed up to us in the first place.” Gaining the right to appeal delays the need for Uber to change its business model at this stage.
The Uber case has caused a stir within the ‘gig economy’ with taxi drivers and bicycle couriers (such as Deliveroo) having the spotlight placed on them after it was found that the drivers/deliverers were considered workers for the purposes of the National Minimum Wage and working time rights as opposed to self employed contractors.
In our previous article 'Uber – Employee rights and regulatory issues' , we set out the factors that UK Courts take into account to determine employment status. These include:
- Mutual obligation – this means that the employer has an obligation to provide work and employee has an obligation to be available for work;
- Personal service – the service has to be provided by the individual, they cannot send a substitute;
- Control – the employer controls what, how and when;
- Exclusivity – the individual cannot work for anyone else without the employer’s express permission;
- Facilities and equipment - the company provides the individual with the facilities and equipment required by them to carry out their job;
- Benefits - they may receive a pension, bonus, private medical insurance, company car or other benefit and be entitled to holiday pay and company sick pay;
- Integration - The individual is integrated into the company. For example, their name appears on the internal telephone directory, they have a company e-mail address, they wear a uniform and they have a company business card.
Another case similar to the Uber case is Pimlico Plumbers Ltd V Smith. However, unlike the Uber case, Pimlico’s appeal request was rejected by the Court of Appeal. Similarly to the Uber case, it was decided that the self-employed plumbers were in fact workers and not self- employed. The principal for this decision was that the plumbers were required to work 5 days a week with set hours of 40 hours a week, to be on call at all times during shifts, wear a uniform and conform to personal conduct guidelines. Pimlico also had the ability to monitor each operative’s movements via GPS systems which were fitted in their vans.
It is becoming increasingly difficult to balance flexibility of staff with control and consistency in how your staff deliver your services.
Watch this space for the next company to be challenged. There is already a case progressing against CitySprint UK Limited. If you have anyone working for your company on a self-employed basis but who works exclusively for your business, works hours set down by you, uses your company equipment and is part of your team then you may want to consider a review to check their employment status. Particularly as this also impacts on tax and NI contributions, an area which the HMRC is increasingly clamping down on, especially where it sees it as ‘disguised employment’.
If you require more information, please contact Maria Gallucci on 01908 202150 or email: firstname.lastname@example.org