In February, the Supreme Court upheld the Employment Tribunal’s decision that Uber’s drivers were workers for the purposes of the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998.
In reaching this decision, the Court gave primacy to the intention of those statutory instruments rather than to the contractual terms under which the drivers were engaged.
It was the intention of the above acts to protect the rights of individuals who were subordinate to and dependant on a person or organisation for whom they performed work. With that in mind, the Court confirmed that a contract should not be the starting point for determining an individual’s employment status as it would not be fair for individuals to be deemed to have ‘contracted out’ of their statutory rights.
This is another in a long line of gig economy cases that confirms that is not sufficient to state in a contract that an individual is self-employed and highlights the importance of reviewing your relationships with such individuals.
The key consideration for businesses wanting to audit the employment status of such individuals is control:
• How much control does the self-employed individual have over their working time, the work they do and how they do it?
• Are they able to work for other people, or are they subject to an exclusivity clause?
• Do they have the power to appoint a substitute or is it a condition that they perform services personally?
These are only some of the questions businesses should ask when reviewing the working practices of self-employed individuals, if you’re concerned about employment status and would like advice or assistance please contact us.