Worker status has received particular attention from the Government recently in relation to the postponed IR35 rules (now due to come into force in April 2021) – the ‘off-payroll working rules’.
These rules are designed to ensure that someone who would be an employee, but for the intermediary, pays sufficient tax and NI, and the rules will provide for circumstances in which a client (organisation receiving the services) will be responsible for determining if the individual providing the services through an intermediary (usually – but not always – a personal services company) is someone to whom the rules apply.
Definition of a Worker
Workers are not self-employed but the statutory definition covers individuals who are employees as well as those who are not.
The similarities, broadly speaking, are that workers of both types are required to provide services ‘personally’ and work under the ‘control’ of the person or organisation receiving the services.
Whilst only employees have the right not to be unfairly dismissed, all workers benefit from a package of statutory rights regarding pay and working time.
Uber and the Supreme Court Decision
The well-publicised litigation mounted by a group of Uber drivers in the Employment Tribunal has now made its way as far as the Supreme Court, which has stated that the main issue under consideration was whether “the drivers were working under contracts with Uber London whereby they undertook to perform services for Uber London; or whether, as Uber contends, they are to be regarded as performing services solely for and under contracts made with passengers” and are therefore self-employed.
The reason this is important to establish is because workers benefit from certain statutory rights, as mentioned above, which was summarised in paragraph 30 of the judgment of the Supreme Court:
“The rights claimed by the claimants in these proceedings are: rights under the National Minimum Wage Act 1998 and associated regulations to be paid at least the national minimum wage for work done; rights under the Working Time Regulations 1998 which include the right to receive paid annual leave; and in the case of two claimants, one of whom is Mr Aslam, a right under the Employment Rights Act 1996 not to suffer detrimental treatment on the grounds of having made a protected disclosure (“whistleblowing”).”Paragraph 30, Supreme Court Judgement
In this case, the Supreme Court dismissed Uber’s appeal and agreed that the drivers were workers. The reasons given by the Court were various, but centred on the degree of control by Uber to which the drivers are subjected.
Uber had sought to argue that the drivers were free to accept work if and when they pleased and had only to log on to an app if they were interested in working. But this did not persuade the Court, which considered factors such as their remuneration and terms of working being fixed by Uber, their ‘performance’ being monitored and the fact that they must accept a journey before knowing the destination.
Uber also controls the level of communication between customer and driver very tightly and approves the vehicle used.
The case is a useful warning to organisations entering into what appear to be ‘free and easy’ arrangements with persons they take to be self-employed contractors, that such arrangements will only be so, if it can be shown that the individuals are genuinely not subordinate to the organisation.
If this cannot be shown, then the organisation will have many more responsibilities including paying minimum wage and holiday pay.
This article is provided by Burlingtons for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact Richard Berry or write to us using the contact form below.