DAVID MORGAN

The “Gig Economy” is a hot topic in employment law. It cuts across the vexed issue of employment status – whether individuals who take on work on a piecemeal basis are workers, employees or truly self-employed independent contractors. It has been described as the “Uber-isation” of work or the “sharing” or “collaborative” economy.

Increasingly the boundaries between worker and employee are blurred and the dilemma of this categorisation sets the stage for their legal rights – whether that is to unfair dismissal protection, national minimum wage, holidays or sick pay.

Maybe I can answer it simply with a take on the old saying “if it looks like a duck, and it quacks like a duck...then it’s a duck”. So, if the individual looks like a worker...and acts like a worker...is he or she not a worker? The courts have been determined to look behind the language of even the most tightly drafted contracts for independent contractors to find that the individual is truly an employee, or at least a worker, when you look at the practical reality of the working relationship.

Then along came Uber. The hotly awaited judgement of the claim brought by the GMB union on behalf of a number of drivers against Uber before the Employment Tribunal in London, was handed down the other week. While not binding on future trials as an entry level tribunal decision, it made for very interesting reading.

In short, the Employment Tribunal resoundingly found in favour of the drivers and held that they were “workers” at law, and not self-employed independent contractors as their contracts said.

It rejected Uber’s submissions that it is simply a technology platform as opposed to a transport provider and that its drivers are self-employed contractors offering their services to passengers via the app. In the tribunal’s view, any driver who has the app switched on, is within the territory in which he or she is authorised to work, and is able and willing to accept assignments is – for as long as those conditions are satisfied – working for Uber under a worker contract.

The tribunal decided that the notion that Uber in London was a mosaic of 30,000 small businesses linked by a common platform was ‘faintly ridiculous’. Apart from a few individuals who operate more than one vehicle on their Uber account, each business consisted of an individual with a car seeking to make a living by driving it.

Shortly after the judgment was issued, Uber released a statement to its customers (reportedly some two million passengers registered in London alone) confirming that it will seek to appeal the decision.

Full blown employment status could cripple the low-cost business model and sustainability of some tech businesses. To cut through the uncertainty (and delays) of the litigation approach to determining employment status, I wonder if we could see Government intervention to regulate the industry fairly.

My provocation is that the traditional tests of “subordination”, control and “mutuality of obligation” are no longer fit for purpose in assessing the status of these workers. The flexibility of picking and choosing “gigs” is generally why workers are attracted to this sector. Who is to say that independent contractor status does not suit the majority of these workers anyway?

Uber said in a post-Tribunal statement: “......Drivers want the freedom to decide where, when and for how long to drive: being classified as workers could deprive them of the personal flexibility they value.”

You can take a duck to water...but you can’t make it quack!

David Morgan is a partner in commercial law firm Burness Paull, LLP and an accredited expert in employment law