Enhanced employment rights for the ‘gig economy’?
With the increasing trend away from full time regular working hours, there has been a rise in the so called ‘gig economy’. People working in this industry tend to be paid for each job that they carry out, whether that be a taxi journey or fast food delivery and are often treated as self-employed with no entitlement to holiday pay, the national minimum wage and other employment rights and protections otherwise offered to workers. The gig economy is currently a hot topic in employment law, not least due to two recent high profile tribunal decisions.
The first decision of interest took place in October of last year when the Central London Employment Tribunal found that Uber drivers are not self-employed but are in fact workers with the result that they are entitled to receive holiday pay and the national minimum wage (amongst other things). Uber had argued that the drivers were running their own businesses and that Uber was simply a technology platform as opposed to a transport company. This was not accepted by the tribunal and it was recognised that drivers were in fact workers, with Uber being responsible for matters such as recruiting drivers and controlling their ability to accept or decline fares.
The impact of this decision was huge (not least because there are 40,000 uber drivers in the UK) and was seen as a test case for workers in the gig economy across the UK. Whilst it may be that some drivers do want the flexibility that being self-employed brings, this decision has highlighted the importance of looking beyond the labels given to those working in the gig economy. The GMB has been very active and vocal in the negative impact that treating Uber drivers as self-employed contractors has had.
The decision has been appealed by Uber, therefore it will be interesting to see how this is dealt with by the Employment Appeal Tribunal.
The Uber case has recently been followed by a further decision of the Central London Employment Tribunal concerning Citysprint couriers. In this case, it was held that a bicycle courier was a worker of the courier firm, despite contractual documents referring to her as a ‘self-employed contractor’.
The courier’s contractual terms were such that she was technically under no obligation to provide services and Citysprint was under no obligation to provide work, however the tribunal departed from the actual wording of the contract to look at the reality of the situation.
The control exercised by Citysprint was relevant and the fact that the couriers were tracked by GPS, instructed to wear a uniform and had no ability to negotiate their pay was considered to be inconsistent with a genuine self-employed situation. Another point of significance in this case was that the substitution clause in the couriers’ contracts was so specific that in reality only Citysprint couriers could fill in for one another.
The Gig Economy Generally and Implications for Employment Conditions
These two decisions are by no means isolated. Delivery firm ‘Deliveroo’ has also faced strikes from bike delivery couriers after they tried to replace an hourly rate with a ‘payment per job’ pay structure. The company has since said that it will not force the riders to accept the new contracts however this does highlight the inequality of bargaining power and the tensions which exist throughout the gig economy.
These recent decisions and the press attention surrounding them serve as a stark reminder to employers who might try to misrepresent the employment status of people who work for them. The question as to whether individuals are genuinely self-employed is of course fact specific and does turn on the particular circumstances of each case. Although ‘gig’ working can suit people who are looking for flexible working arrangements, there is a real risk that their rights will not be properly safeguarded.