A Saucy Read

I’ve been unexpectedly really busy this last couple of weeks presenting webinars, speaking at events and on the radio about a number of recent judgements and employment law issues.

IR35 has dominated some of my time closely followed by Covid tests and whether these could be made mandatory for care home workers and other carers.

I’ve also been speaking to a lot of employers about the judgement in Uber’s appeal against the decisions of the employment tribunal, employment appeal tribunal and the Court of Appeal

An issue I come across a lot is status and in particular whether an individual is an employee a worker or self-employed?

It might not surprise you to learn some businesses draft contracts that state an individual is self-employed despite the fact that they are obviously not in order that they can avoid making payments to them such as the NMW SSP or holiday pay.

My response has always been pretty straight forward “ that if it looks like ketchup and smells like ketchup it doesn’t matter if I relabel it as salad cream”

This case in a nutshell said much the same. A sham contractual provision or a different label is not a decider as to employment status.

The three types of status are, employee, self employed and “a worker” . A worker is of course the equivalent in my world of analogies to a rose marie sauce. There are overlaps in both the world of employee and self-employed status however this is a sauce providing a personal service to a specific business (or prawn cocktail) which cannot be substituted…..

Many clients still get confused about status and some often question what the point of worker status is ? Sometimes I’m minded to agree as it does add to confusion as to rights and obligations. Our most commonly requested document is our status checklist.

The main tests engaged in assessing status are mutuality of obligation and control.

Applying this and other tests in the Uber case the Supreme court decided that Uber drivers were “workers” – not self-employed and were therefore entitled to basic rights including paid holiday, rest breaks and the national minimum wage.

There were five reasons for this:

1.      Uber sets the fares for each ride the drivers carry out and the drivers are not permitted to set their own prices as they would if they were self-employed

2.      Uber sets the terms and conditions of using its service

3.      Drivers face penalties for cancelling or not accepting rides – sometimes preventing them from working

4.      Uber has significant control over the way that drivers work, as they face a rating system. If a drivers’ Uber rating falls below a certain level they face penalties or termination of their contract

5.      Uber takes active steps to prevent drivers and passengers from having an agreement outside of the Uber app.

The relationship was described as one of “subordination and dependency”

The court held that they were considered workers during the time they spend logged in to the Uber app.

So although misleading and probably clickbait as my children would say I hope that you found this update useful.

I’d love to know any analogies you use for other employment law related matters – I find them really useful in my lecturing role. Please do share.

Marie