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Partner and Head of Family Law, Rugby
The distinction between workers and the self employed has caused vast confusion to employers and employees in 2017 and is likely to continue to do so in 2018. We have seen a number of recent cases brought to Tribunal to clarify the status of an individual. Most of you will be familiar with the Deliveroo decision where the Tribunal determined that Deliveroo riders are genuinely self-employed. On the other hand we have the Pimlico Plumbers case and the matter of Uber drivers which found the plumbers to be employees and Uber drivers to be workers. With such focus being placed on the true legal status of a worker, employers are under pressure to get it right. The distinction, although what that distinction is currently remains unclear, is an important one to make.
Workers and employees (provided they have the requisite service) benefit from a range of rights including the ability to bring certain claims in the Employment Tribunal against their employer. Workers are entitled to, amongst other things, a minimum wage and paid annual leave.
Self employed workers do not benefit from all the same rights, and as such whether someone is a worker or self employed becomes increasingly important.
It is clear from the Uber decision that how workers are treated in practice is important when deciding whether someone is a worker. Uber claims that they do not employ drivers; they are simply the middle men in connecting self employed drivers to the customers. Judge Anthony Snelson disagreed stating “The notion that Uber in London is a mosaic of 30,000 small businesses linked by a common ‘platform’ is to our minds faintly ridiculous”.
After losing their claim in the Employment Tribunal Uber tried to ‘leapfrog’ when appealing this decision. This means that, if allowed, they would skip an appeal in the Court of Appeal and would go straight to the Supreme Court. This is rarely allowed, and in Uber’s case, was not surprisingly refused. It will now be for Uber to go through the Court of Appeal to continue the debate as to whether Uber drivers are workers or self employed and then appeal to the Supreme Court if appropriate.
Employers need to be wary of this distinction and make sure employment and worker documentation accurately reflect the situation in practice. Just because you call someone a contractor or self-employed does not mean that this is necessarily the case. This argument is likely to rumble on, so watch this space.
If you need any help or guidance on this please do not hesitate to contact a member of our Employment team on 01295 270 999.