Couriers, Cabs and Workers’ Rights - Self Employed, Workers or Employees?
The recent decisions in the Uber and cycle courier cases (Aslam, Farrar and ors v Uber BV, Uber London Ltd, Uber Britannia Ltd and Dewhurst v City Sprint (UK)), highlight a very live and ongoing concern for businesses within certain sectors, which is whether the custom of treating some individuals as self employed contractors can stand up to the scrutiny of the Courts. In these cases the Employment Tribunals decided that the individuals concerned were workers and were not genuinely self employed. The Uber case is being appealed but, as matters stand, this could mean that thousands of individuals whom businesses have traditionally treated as self employed contractors have the potential to claim that they are in fact workers. Let’s look at the law.
Who is genuinely self employed? – This should include an independent provider of services not in a relationship of subordination with the person receiving those services, someone who is in business on his/her own account, working for clients and customers of his/her business undertaking, who is not obliged to do the work personally but able to substitute someone else to undertake the work.
Who is a worker? – There are various definitions in the legislation but this is essentially someone who undertakes to do work or to perform work or services personally. The case law highlights, amongst other matters, the fact that the label the parties attach to the relationship is not determinative, so even if the parties agree in writing that the individual is a self employed contractor, the Courts can and will still look behind this agreement to state otherwise.
Why does the distinction matter? - Workers have a significant number of rights which are not generally available to the self employed. For instance, workers have rights in respect of working hours, rights to paid annual leave, to auto enrolment to a pension, to whistle blow, to the national minimum wage, rights in relation to trade union membership and the right not to be discriminated against. Businesses will already have seen that holiday pay can be claimed, going back a number of years, and that failing to pay the national minimum wage can attract unwanted negative publicity.
From the perspective of Uber and City Sprint, there is great potential for many more couriers, drivers etc. to come forward claiming workers’ rights. This may in turn cause others who have been providing their services as self employed contractors to examine more closely whether they can also claim that they are in fact workers, along with the rights and benefits which come from being a worker.
What should businesses do? - Businesses are advised to review their Contracts with staff they have traditionally labelled as “self employed”. If you have volunteers the situation may be even more complex. Specialist Employment Law advice should be obtained, at the earliest opportunity, to assess how these commercial relationships work in reality, to identify possible areas of risk and to discuss how these risks can be minimised. Please contact either Caroline Omare Fofie or Alice Lane, in our Employment Team on 0207 821 8211, for the bespoke commercial advice your business needs. We will be happy to help.