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The Employment Tribunal in Glasgow recently handed down its judgment in the case of McClung v Doosan Babcock Ltd. The tribunal held that the claimant’s support for the football team Rangers FC did not constitute a philosophical belief and therefore devoted fan Eddie McClung did not qualify for protection under the Equality Act 2010.

Under the Equality Act, it is unlawful to discriminate in the workplace due to an employee’s religious belief, philosophical belief or lack of religion or belief. If a philosophical belief is protected under the Equality Act, any prejudice experienced by an employee as a result could be classed as unlawful discrimination.

What is ‘philosophical belief’?

McClung was employed by Doosan Babcock as a self-employed contractor. After his contract was terminated in September 2019, he submitted a claim for unfair dismissal on the grounds that his support of Glasgow Rangers Football Club constituted a philosophical belief under section 10 of the Equality Act.

This case raises a number of questions, namely: what constitutes a philosophical belief? To aid her judgment in this case, Judge L Wiseman referred to the case of Grainger plc v Nicholson 2010 IRLR 4 in which the five criteria necessary for qualification as a philosophical belief are laid out. The criteria are as follows:

● the belief must be genuinely held;
● it must be a belief and not an opinion or viewpoint based on the present state of information available;
● it must be a belief as to a weighty and substantial aspect of human life and behaviour;
● it must attain a certain level of cogency, seriousness, cohesion and importance; and
● it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with fundamental rights of others.

Is unswerving devotion enough?

Using these five criteria, Judge Wiseman concluded that McClung’s support for Rangers FC satisfied the first point only. Therefore, his fandom did not count as a philosophical belief, and was not protected by the Equality Act.

It was submitted by counsel for Doosan Babcock that support for Rangers was “support” and not a “belief” (and therefore did not meet the requirements of point 2 above). It was also deemed not to merit a sufficient level of cogency, and not to be worthy of respect in a democratic society “because support for a football club, whilst not objectionable in any way, did not hold much importance to society when compared with weightier issues such as ethical veganism”.

The 2020 judgment from the case Mr J Casamitjana Costa v The League Against Cruel Sports determined that ethical veganism did meet the criteria for philosophical belief because “the relationship between humans and other fellow creatures is plainly a substantial aspect of human life, it has sweeping consequences on human behaviour and clearly it is capable of constituting a belief which seeks to avoid the exploitation of fellow species”. It was submitted that, while the claimant’s support of Rangers FC may be subjectively important to him, it did not represent a weighty or substantial aspect of human life and had no larger consequences for humanity as a whole, as described by the judge in the Casamitjana case. It was therefore argued that the support of a football club was fundamentally incompatible with this strand of the Grainger test.

Whilst being an ethical vegan requires substantial dedication and commitment (the claimant in the Casamitjana case not only followed a vegan diet but also used only vegan products and wore clothes made exclusively from sympathetic fibres), supporting a football team was compared to being vegetarian. Reference was made to the Conisbee v Crossley Farms Ltd case, in which vegetarianism was found to be a lifestyle choice. Similar to the Conisbee case, it was submitted that “there were many different reasons behind vegetarianism without a single cohesive underpinning or belief”, which also applied to Mr McClung’s case as there are a wide array of Rangers’ football fans who will all have varying reasons behind their support and will show their support in different ways.

The claimant mentioned in his statement that Rangers fans are often strong Unionists, and show strong support for the then Queen. It was mentioned, however, that the Rangers FC website promoted the slogan, ‘Everyone Anyone’, which indicates these beliefs are not necessary components of being a Rangers Fan, unlike ethical veganism which requires specific beliefs and lifestyle choices.

Game over

Ultimately, the tribunal decided that support for a football team, no matter how strong, “does not determine how someone lives their life or have a substantial influence on their day-to-day activities and decisions”, and therefore does not meet the standards of the Grainger test. It was concluded there was a “significant difference in law between support for a football club and a philosophical belief.”

Beatrice Hale is a final year history and Spanish student at Durham University, and intends to pursue a career as a solicitor. She can be found on LinkedIn.

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In July 2020 I wrote for the Legal Cheek Journal on Uber’s Supreme Court appeal, detailing the case so far in the various lower courts. Today, the Supreme Court handed down its judgment in that case, unanimously dismissing Uber’s appeal. This follow-up article will go through the various parts of the judgment and think about the implications both for Uber, and further afield for other employers.

The nature of the dispute

The broad and simple summary of the case was, essentially, that Uber didn’t believe the claimants, a group of Uber drivers, were “workers”. The claimants insisted that they were workers, and wanted the various benefits and considerations afforded to those who meet that definition. Most notable of these would be the right to be paid at least the national minimum wage and receive paid leave.

The original employment tribunal decision ruled in favour of the claimants, establishing that they were workers. Their working hours were defined as being when their app was switched on, they were in their working territory, and they were ready to accept trips.

The question which the tribunal considered was whether the drivers fitted the definition of “worker” as laid out by Section 230(3) of the Employment Rights Act 1996. That definition includes individuals who work under a contract “whereby the individual undertakes to do […] personally any work or services for another party to the contract whose status is not […] that of a client or customer of any profession or business undertaking carried on by the individual”. The tribunal found that the drivers satisfied that definition.

This decision was upheld on appeal, first in the employment appeal tribunal, and subsequently in the Court of Appeal. Both appellate courts held that the employment tribunal had correctly defined the relationship between Uber and the claimants.

The issues

The hearing took place over two days on the 21 and 22 July 2020, in front of seven justices of the Supreme Court. The panel of justices reconstituted as six, as Lord Kitchin fell ill and it was uncertain when he would return. The issues for the appeal were, as they had been in the lower courts:

1) Whether the respondents (the drivers) were “workers” providing personal services to Uber; and
2) If they were, what periods constituted their “working time”.

The arguments were livestreamed and covered in detail. Threads detailing each day by employment barristers Jason Braier and Matt Jackson can be found here for day one, and here for day two.

Uber argued that their role in the equation was as a facilitator, merely connecting passengers with drivers. Any contract which was formed for each ride was therefore solely between driver and passenger, according to Uber. In terms of the 20% which Uber collects for each ride, they argued that this was merely a service charge, and was in line with their role as facilitating agents. They were keen to highlight the fact that their drivers have enormous flexibility in terms of their driving hours, and that this provided further indicators of their status as independent contractors.

Were the drivers ‘workers’?

The court unanimously dismissed Uber’s appeal. They addressed Uber’s arguments about being merely a facilitator or booking agent, stating that there was no factual basis for that assertion. As there were no written contracts between Uber London (the subsidiary of Uber BV who acted as the booking agent in this case), the correct interpretation of the legal relationship had to be drawn from the parties’ conduct. This essentially means looking at the way each party acted, and inferring what that means about the nature of their relationship.

The court defined the relationships as follows: it is Uber with whom the passengers contract, and Uber then engages drivers to transport the passengers who have booked. The court justified its conclusion on the relationship by returning to various findings which the original employment tribunal had made. Firstly, that Uber sets the fare for each ride and the drivers have no say in that figure. The drivers also had no say in the terms on which they perform their services.

Though Uber had been keen to highlight the autonomy of its drivers, the court emphasised the fact that drivers could be penalised if they refused or cancelled too many trips. This itself was a further indicator that the relationship between the parties met the “workers” definition above. There were other penalties and warnings, notably Uber’s famous “rating” system, whereby if a driver fails to maintain a certain rating, they are eventually terminated. On the autonomy point, the court also addressed the fact that Uber drivers are only able to interact with passengers in a very limited way which relates solely to the trip they are making. This does not, at face value, seem like the sort of relationship an “independent contractor” would have with a client.

All of these the court considered as indicators of the drivers being workers, rather than independent contractors. The drivers had little to no control over their terms of their service to passengers, penalties and warnings from Uber, and little in the way of independent autonomy of relationship with the passengers.

Working hours

On the second issue, the court addressed the working time question in just two short paragraphs. They held that all of the lower courts had been correct to find that the three conditions of “working time”, which I outlined above, were met.

Implications for Uber and further afield

What is clear from this case is that Uber have clearly tried to use minutiae and details of contracts to defend themselves from having to pay and protect their workers properly. The court’s approach to this was, to put it informally, say ‘if it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck’. Uber will have to come up with the money to pay drivers for the time that they had their app switched on, and so were “workers” who were on the clock. It is not impossible, based on their approach in this case so far, and in other cases in other jurisdictions, that Uber may regard this as being a very narrow issue relating to their practices from a few years ago, and may attempt to resist paying out compensation to a great number of their drivers.

Joshua Xerri is an aspiring barrister.

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The EAT recently handed down its judgment in the case of Steer v Stormsure Ltd [2020] on 21 December 2020, which held that the failure to grant a right to claim interim relief in claims of discrimination/victimisation dismissals was incompatible with Articles 6 and 14 ECHR. However, because the EAT is unable to make a declaration that UK law is incompatible with European law, permission to appeal to the Court of Appeal was granted in order for the question to be resolved.

What is interim relief?

Interim relief is a remedy available to claims who claim they were dismissed for certain reasons, most commonly those who claim they were dismissed for whistleblowing. In order to be granted, the claimant has to show they have a ‘pretty good chance’ of succeeding in their claim, which is a particularly high threshold.

If interim relief is granted, it has very significant consequences, as the employment tribunal can make an order for the continuation of the contract of employment between the parties for the duration of the proceedings or until the claim settles.

This means that the claimant has the right to be paid their wages and receive all other benefits under the contract of employment but without the need to actually to carry out any work, and whether the claimant wins or loses their case they are not required to pay anything back.

The facts of Steer

Mrs S Steer was employed by Stormsure for a relatively short period of time between 12 March and 15 July 2020. She claimed that she had been subject to sexual harassment, and following a request to work from home to avoid further harassment her hours of work were reduced to such an extent that this terminated the contract of employment.

Steer presented a complaint to the employment tribunal on 30 July 2020 whereby she sought interim relief in relation to her complaints of sex discrimination/victimisation claims, as well as for her whistleblowing claim. Whilst an interim relief hearing was listed, it was only to hear the application under the whistleblowing claim.

The appeal

The appeal focused on three grounds:

1. The decision of the employment tribunal that it did not have the power to grant interim relief in discrimination and victimisation claims was an error of law;

2. The employment tribunal erred in law in concluding it had no jurisdiction to order interim relief in Equality Act 2010 claims without first hearing the appellant; and

3. The employment tribunal’s reasons were inadequate.

Mr Justice Cavanagh dismissed grounds two and three, accepting it neither had jurisdiction to hear the application and that its reasons were adequate, but he granted permission to appeal on the first ground.

The decision of the employment appeal tribunal

The appeal was heard on 15 and 16 December 2020, a hearing expedited due to the impending cessation of EU law in the UK as of 31 December 2020, meaning the decision would represent the law prior to the withdrawal of the UK from the EU.

In a lengthy and technical judgment handed down on 21 December 2020, Mr Justice Cavanagh dismissed the appeal. The EAT held that the remedies available in discrimination complaints were not incompatible with EU law, in that they were not less favourable than the remedies available founded under the domestic legislation for whistleblowing.

However, the EAT did find that there was no justification for the difference in treatment between, for example, whistleblowing dismissals and discriminatory dismissals under the ECHR. The UK government were invited to provide responses as to how the difference between the two can be justified, but they refused to do so.

What next?

The difficulty for the EAT was that it does not have the right to make a declaration of incompatibility, and it accepted that it was not equipped to properly balance the effects of making a decision on whether interim relief should be extended to discriminatory dismissals, and so permission was granted for an appeal to the Court of Appeal to determine whether the Equality Act 2010 should be interpreted to this effect.

We can expect that the UK government will take the opportunity to intervene and justify the difference in treatment in this appeal, particularly where the EAT noted several policy considerations and practical consequences if interim relief were extended to discrimination complaints. This included broadening the remedies available in discrimination complaints but not other types of claims, widening the scope of who can apply for this remedy (where at the moment it is available only to employees), the increase in interim relief applications and the burden this would have on the employment tribunals, but also the complexity of interim relief hearings on complex aspects of discrimination legislation.

Either way, it is going to make for a very interesting decision once it reaches the Court of Appeal, and it is one which could change the landscape of discrimination legislation yet again.

Thomas Fuller is an employment tribunal advocate. He studied law at Liverpool John Moores University.

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The Supreme Court’s two-day hearing of the Uber BV and others v Aslam and others case concluded this week. It will doubtless be a landmark judgment in the field of employment law, and particularly the questions surrounding the so-called ‘gig-economy’.

What is the background to the case?

The Employment Tribunal heard claims by Mr Aslam and others under the Employment Rights Act 1996 and the National Minimum Wage Act 1998, alongside associated regulations, for failure to pay the minimum wage, and failure to provide paid leave. Uber defended the claim with the assertion that the claimants were not “workers”, and therefore were not afforded protection under the Acts and Regulations.

The Employment Tribunal decided that the claimants were employed as “workers”, and that each of the claimants’ working hours began whenever they were within their working territory, had the app switched on, and was ready and willing to accept trips. The Tribunal’s decision centred on the difference between when the app was switched on, and when it was not. It said that, while the app was switched off, there was no question of any contractual obligation to provide driving services, and that there was no ‘umbrella’ contract. However, the Tribunal decided that when the app was on and a driver was working, they would fit the definition of working under a ‘worker’ contract, as defined by the legislation.

The appeals

Uber appealed the decision to the Employment Appeal Tribunal, which was heard by Judge Eady QC, on the following grounds:

i. That the Employment Tribunal had erred in law, as although there was no contract between the drivers and Uber London, there was a written agreement between the drivers, UBV (the parent company), and riders, which were inconsistent with a worker relationship;

iv. Had failed to take into account matters relied on by Uber.

Judge Eady dismissed the appeal, holding that the Tribunal had been entitled to reject Uber’s characterisation of the relationship in their written contracts. She made the point that, in deciding issues of employment status, it is important to look at the statutes, and not rely solely on the definitions and terminology used by the parties; simply because a party uses the word “self-employed” doesn’t mean that that it is in fact the employment status.

Uber appealed further to the Court of Appeal, who also dismissed the appeal, holding that the Employment Tribunal had correctly defined the relationship between the claimants and Uber.

The Supreme Court case

Uber have now appealed to the Supreme Court. The Supreme Court has heard two days of arguments, in front of 7 Justices of the Supreme Court. Uber were represented by Dinah Rose QC and Fraser Campbell of Blackstone Chambers, and the first and second respondents were represented by Jason Galbraith-Marten QC and Sheryn Omeri of Cloisters, and the third respondent was represented by Oliver Segal QC and Melanie Tether of Old Square Chambers.

The issues to decide were: a) whether the drivers were considered “workers”, and b) if they were, what periods constituted their “working time”. The Court will consider its judgment, but in the meantime, the sessions are available to watch on the Supreme Court’s website.

So why does it matter?

Well, employment status disputes often come to the fore when one party claims they are being denied certain rights which are only afforded to people if they are employed. There are different categories of employment: dependent employees, who are entitled to a wide range of employment rights and benefits; workers, who are entitled to some, but not all, of those rights; and third party contractors, who are afforded very little protection under the employment legislation.

This is obviously very important for the drivers, as if they are considered to be workers, they are entitled to many more rights than if they are not (including some provision for paid leave, etc.) This would have a much wider-reaching impact on the field of employment law. The so-called gig-economy has been widely reported on, and the issues surrounding zero-hours contracts discussed at length. It is a booming industry, with more and more people flocking to work for companies like Uber, in a job market which could see a rise in unemployment to up to 13%, in a worst-case scenario.

As such, the Supreme Court decision will be of vital importance to those who drive for Uber or work for other such similar companies.

Uber in the courts

This is not the only case which Uber has faced in recent months. Last month, the Supreme Court of Canada handed down a judgment which paved the way for a $400 million (£233 million) lawsuit by drivers against the taxi-hailing app. California’s attorney general has also recently sued Uber, claiming that they had wrongly classified their drivers as independent contractors instead of employees, in violation of state law.

What happens next?

The Supreme Court Justices will consider the arguments they have heard, and will hand down a judgment within the next few months. If they dismiss the appeal, as the lower courts have, then Uber will be faced with having to provide their drivers with paid leave and a range of other benefits. If the appeal is granted, however, then thousands of drivers will be left without any real statutory protection in their work.

Joshua Xerri is a BPTC student at Cardiff University.

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For some eating plant-based is a dietary choice, for others — described as ethical veganism — it is a practice which involves trying to exclude all forms of animal exploitation from every aspect of life.

Discrimination and ethical veganism

The question an employment tribunal considered last week is whether ethical veganism is a protected characteristic and therefore can be legally prohibited from discrimination. Here, the tribunal found that ethical veganism does constitute a philosophical belief under the Equality Act 2010.

The ruling is part of a case brought by claimant Jordi Casamitjana against his former employer, the League Against Cruel Sports (LACS). Casamitjana discovered that the pension fund of LACS was investing in companies which he states go against the core principles he abides by as an ethical vegan. He informed his colleagues, encouraging them to act against this. LACS hold that this communication was contrary to managerial instructions and so summarily dismissed Casamitjana. The case involves the claimant alleging wrongful dismissal, claims for detriment under whistleblowing protection laws and breaches of the Equality Act. LACS state that the reason for dismissal was due to Casamitjana’s gross misconduct.

Last Friday’s ruling — which the BBC describes as a “landmark” decision — is the result of a preliminary hearing on the matter. For the case to proceed on the pleadings argued, employment judge Robin Postle had to consider the question: is the claimant’s ethical veganism a protected characteristic for the purposes of the Equality Act?

The protected characteristic of philosophical belief

Under the Equality Act there are nine protected characteristics in which it is illegal to discriminate against. These are: age; disability; gender reassignment; marriage and civil partnership; race; pregnancy and maternity; religion or belief; sex; and sexual orientation. The case in hand concerns “belief” as per section 10:

“10. Religion or belief
…
(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.
…”

Parliament has drafted this legislation in an open-ended manner. This is the delight of section 10. Caselaw and the Equality Act 2010 Code of Practice provide a five-point test for determining when a philosophical belief is a protected characteristic, the belief:

1. Must be genuinely held;
2. Must be a belief and not an opinion or viewpoint based on the present state of information available;
3. Must be a belief as to a weighty and substantial aspect of human life and behaviour;
4. Must attain a certain level of cogency, seriousness, cohesion and importance;
5. Must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

Ethical veganism

The claimant’s case drew a distinction between the varying conceptual commitments to veganism. Casamitjana’s belief in veganism goes further than only a dietary restriction (this helps distinguish the case from Conisbee v Crossley Farms Ltd and Ors in which the claim of vegetarianism as a protected characteristic failed). Rather his fundamental belief is “ethical veganism”, therefore along with not eating or wearing any animal products, the claimant is also conscious of, for example, his travel impact by choosing to walk, rather than taking the bus, as buses are more likely to kill insects. The belief influences every aspect of his life.

Due to his belief that ethical veganism is a ‘moral imperative’ the tribunal found that the claimant passed the five-point test (above) making the belief a protected characteristic under the Equality Act. The five-point test’s final hurdle that the belief must be “worthy of respect in a democratic society [and] not incompatible with human dignity”, recently meant a different case — in which the claimant’s belief that sex is an immutable biological fact — failed. However, Casamitjana pleading that his belief in ethical veganism “positively improves it [democracy]” was accepted.

Commentary

I agree that the claimant’s belief adds to the richness of our society and the country’s rising number of vegans may likely concur too. Is it really a surprise that employment judge Postle has found ethical veganism to be a protected characteristic? No, caselaw suggests a movement towards accepting a wide and varied understanding of what constitutes a philosophical belief. For example, in the case of Grainger; a genuine belief in man-made climate change, and the alleged resulting moral requirements, is a philosophical belief to be protected against discrimination. The crux is passing the five-point test. Yes, this does put philosophical belief on the same weighting as a person’s religious identity, but this is wholly correct as intended by section 10 of the Equality Act for “philosophical beliefs may be just as fundamental or integral to a person’s daily life as are religious beliefs”. This aligns with our article 9 right for “freedom of thought, conscience and religion” under the European Convention of Human Rights.

Though this ruling is from a first instance employment tribunal and whilst it isn’t a surprise, the implications may involve goods and service providers now having to ensure, for example, vegan meal options. This is not controversial, in 2017 Portugal passed a law making it illegal not to offer vegan food at prisons, hospitals and schools. Being a protected characteristic under the Equality Act also has potential implications for employers who may want to be aware that uniforms or office equipment be vegan-compliant.

Some are saying that this ruling may pave the way for ethical vegans to bring a judicial review challenge against the Bank of England for issuing banknotes made with animal products. It is a matter of watch this space, but for now I want to remind you not to sensationalise this ruling in any great way as it fundamentally fits with how a modern tolerant society should act; as the European Court of Human Rights observed in Kokkinakis v Greece, “the pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it”. This ruling is simply a reflection of a progressive society.

Yara Ali-Adib is a solicitor at Broudie Jackson Canter who specialises in discrimination and human rights law.

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We all know that social media posts can be vile, stupid, reckless or just reflect a position we don’t agree with. Clive O’Connell was a corporate law partner at Goldberg Segalla and Chelsea FC-mad. He labelled Liverpool fans as “scum scouse idiots” on a YouTube video. Nice.

Angela Gibbins, employed by the British Council, commented on Facebook on a photo of a two-year-old Prince George: “White privilege. That cheeky grin is the (already locked-in) innate knowledge that he is Royal, rich, advantaged and will never know any difficulties or hardships in life.” Lively.

But did these individuals deserve the fate which followed these posts?

Clive O’Connell was promptly pushed out of the partnership, and in Gibbins’ case her social media post ended up in The Sun and she was dismissed for gross misconduct for bringing her employer into disrepute. She brought a claim for unfair dismissal but lost: the tribunal found that her dismissal was lawful.

Professor Mantouvalou argues in her recently-published paper that these tribunals ignore the fact that employees have a right to privacy and to free speech. Even if we don’t particularly like the posts, they may be embarrassing, nasty or unsavoury, that doesn’t mean their authors should lose their jobs.

On privacy, Mantouvalou argues that it is not right to argue that everything on social media should be seen as “public”. She says: “The location of an activity is not determinative as to whether that activity is public or private.” She gives the example of “sharing a secret in public space with a loved one, while a passer-by deliberately eavesdrops and then shares the secret with others constitutes a breach of privacy despite the fact that the act occurred in a public space.”

So there are social media posts where there should be an “expectation of privacy”. In the employment context this expectation is often taken away from staff because they are told they must abide by an employer’s social media policy which gives an employer considerable control over an employee’s social media usage.

This can’t be right, says Professor Mantouvalou: “Privacy is a broad normative concept, which can protect individuals from employer domination for conduct within or outside the workplace and working time, in public and in private space.” Instead, tribunals should look at dismissal using the standard European Convention on Human Rights-based test of proportionality — is dismissal the right response when someone tweets something foolish, reckless, stupid, or rude?

Then there is Article 10: our freedom of expression which, as we all know, includes the right to be offensive and rude. It is long-established, Mantouvalou argues, that an employer should not treat an employee detrimentally for expressing political views or making comments that are critical of others (or even of their employer — hence, the incredible legal protection for whistleblowers), and social media is the most common vehicle for such views or comments, so posts on Facebook or Twitter must in principle engage Article 10.

By being able to control the social media posts of its staff, employers are making themselves “moral arbiters” of their staff’s views and positions both within and outside of a work context. She concludes: “Free speech should be defended rigorously in the workplace, for otherwise employers can exercise tyrannical power over employees who hold views that they find disagreeable or distasteful.” Mantouvalou also believes that employers have now got into the habit of using social media as an excuse. She tells Legal Cheek: “If they want to get rid of someone, they will trawl through their social media accounts to find something inappropriate.”

Perhaps there is some hope, however, that not all firms will take the ‘sledgehammer’ approach to every social media ‘nut’: Clifford Chance did not sack Aysh Chaudhry, a trainee at the firm when, in 2015, he made a 21-minute video which he posted on YouTube in which he called on British Muslims to adopt a more robust stance against western concepts of freedom of speech and tells Muslims that Islam is “superior” to Western ideologies. Despite mounting pressure and media interest, Clifford Chance did not change their minds, and simply called the comments: “personal and not those of Clifford Chance”. Well. Quite.

This is the latest Legal Cheek Journal series looking at new and interesting legal research. If you are working on a paper or research which you’d like to share with Legal Cheek, email us.

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Employment law has looked promising recently — we’ve been rid of tribunal fees, we’ve had favourable decisions regarding holiday pay (Dudley Metropolitan Borough Council v Willets, King v Sash Window Workshop) and employers now have to publish gender pay gap reports. This all gives the impression that the power lies in the hands of employees.

And yet recently, it has been reported that complaints about being paid less than the minimum wage have doubled, paid overtime is becoming a rarity, and that workers’ influence over their hours, conditions and pay has been eroded “as a culture of insecurity takes hold”. My experience working in the hospitality industry is that employment law needs some serious attention.

Lack of awareness

It genuinely shocked me how little my colleagues knew about their legal rights. In one job, several young employees were not aware of the existence of paid holidays, which to me, is a sad indictment on the rule of law. But, as is commonplace in the hospitality industry, they had no written contract of employment.

Whilst there is no legal requirement to provide employees with a written contract, there is a legal requirement to provide employees with written particulars of their terms and conditions of employment within two months of their start date (section 1 of the Employment Rights Act (ERA) 1996). But as I have seen, this is “widely ignored” (Good Work: The Taylor Review of Modern Working Practices (‘Taylor Report’) — my co-workers were in the dark when it came to their employment rights.

Minimum wage issues

During one restaurant shift, a table walked out without paying and we were told that if it happened again the balance could be deducted from our wages. That is unlawful under the ERA 1996. (It was never deducted from our wages but it was from our tips). On another occasion, one of my co-workers turned 21 and was still getting paid national minimum wage (NMW) for 18-20-year olds.

According to the Low Pay Commission, between 300,000 and 580,000 people could currently be being paid less than the NMW. Paul Noble, partner in dispute resolution specialising in tax at Mishcon de Reya said that employees are “now increasingly knowledgeable about their rights and they’re ready to take action if they don’t think they’re being paid correctly.” That’s not the impression I have got. My colleagues had a general sense of right and wrong but were unsure as to their concrete legal rights and were reluctant to raise them with management.

And it’s not just the hospitality industry. We saw from the recent Primark and Sports Direct scandals that employers were taking deductions from wages for staff uniforms and for clocking in one minute late.

Abuse of ‘zero-hours’

I was appalled by the casual abuse of zero-hour contracts and saddened that this is legal. In the roles I have worked in, no one has had guaranteed hours. Even ‘full-time’ employees were essentially on zero-hour contracts.

I remember overhearing one colleague being told that he would be given no shifts the following week if he did not wear proper footwear to work. Another co-worker was just not very good at the job and their hours were consequently slashed from 30 to about 12 a week. I know several students who are told on a day-to-day basis whether they are required for work, and shifts can be cancelled or rescheduled with as little as a few hours’ notice.

Although zero-hours work is welcomed by many, especially in the gig economy for the flexibility, it is insecure employment which makes it difficult to save or plan for the future. What I saw on a daily basis was a one-sided abuse of the flexibility of zero-hours contracts. It looked much more like exploitation, made all too easy by an under-regulated jobs market.

Unpaid work

To secure one job I had to undertake two unpaid trial shifts. I found this pretty unfair — I provided a benefit to the business in those hours and carried out genuine work, the same as employees. A parallel can be drawn here to the rise in unpaid internships. Employers are exploiting the lack of clarity in the law.

Is more regulation better?

The UK labour market is characterised by flexibility. We have one of the weakest sets of employment protection laws in Europe. This ‘British way’ allows us to have an efficient labour market and a good unemployment rate.

I would argue that it’s not the quantity but the efficacy of employment regulation that is key. Laws need to be transparent and easy to apply in the workplace. Unfortunately, a lot of employment law is characterised by judicial creativity rather than legislative clarity. Even basic definitions such as ‘worker’ and ‘employee’ are “impossible to apply” unless you have “an encyclopaedic knowledge of case law”, according to the Taylor Report.

The government has committed £25.3 million for minimum wage enforcement. You can already complain online about not being paid the minimum wage by filling in a form. HM Revenue & Customs investigates, names and shames non-compliant companies, and can fine the company up to £20,000 per worker. Then we have the Advisory, Conciliation and Arbitration Service (ACAS) and free employment tribunals for disputes. But I’m just not seeing this in practice, and neither is Matthew Taylor (leader of the Taylor review).

The Taylor Report: New rights?

The Taylor Report was commissioned by the government to look into modern working practices. The report contains 53 recommendations, many of which would help workers in the hospitality industry.

The government’s response to the Taylor Report was positive but not ground-breaking, mostly launching consultations. The proposed measures look promising, particularly the introduction of providing a list of day one rights, and a new right to payslips for ALL workers.

The gig economy is getting all the attention, but it is employment law in general that needs greater transparency, so that ordinary people who work hard every day can get what they are due.

Fraser Collingham is a University of Nottingham law graduate. He is currently studying the LPC at the University of Law and is due to commence a training contract at an international law firm in 2019.

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Following calls this week for greater regulation of tech firms from both Sadiq Khan, London mayor, and, separately, Tim Berners-Lee, inventor of the world wide web, today’s feature focuses on the platform economy and how to regulate it. This has been explored in a paper by Michèle Finck, senior research fellow at the Max Planck Institute for Innovation and lecturer in EU law at the University of Oxford.

At the end of 2017, ride-sharing platform Uber suffered its latest legal vanquishment when the European Court of Justice ruled that it is ‘a transport company’ and consequently must abide by EU transport rules to operate within EU borders. This decision follows myriad legal entanglements globally. In the UK, it is in the dock over alleged sexual harassment by drivers, not paying its drivers holiday or sick pay, and not paying enough tax.

But we love Uber. We take around 40 million rides monthly in 633 cities, and the company’s gross bookings (published in 2017) stood at a whopping $20 billion (£14 million). We love it so much we can’t wait to ‘uberise’ everything.

So on the one hand we don’t like what these companies do (exploit workers, take health and safety risks, don’t pay enough taxes) but on the other hand we LOVE what these companies do (provide cheap, convenient, comfortable transport that we don’t have to wait for).

Is it possible for us to embrace the innovation while maintaining a modicum of what we might loosely term a level of ‘morality’? Can we regulate these companies into doing the right thing by society?

So far, technologies disrupt first and regulators desperately chase after them: a bit like the infamous stable door being shut after the horse has bolted far, far away. In Germany (where Uber doesn’t currently operate), you use the word uber to mean ‘above’. As with all digital disrupters, part of Uber’s very success is that it has deliberately found space above and beyond the current regulatory framework, it has forged new paths which defy the framework.

But we can’t just draw up new regulations and impose them; this doesn’t really work. Sometimes, there just isn’t the legal language to cope: a key personality in the digital economy is the “prosumer”, someone who not only produces but also consumes a product (such as Twitter users). But there is no legal definition of a prosumer, whereas a prosumer may yet have rights which need protecting or powers which need regulating.

Regulations tend to be imposed nationally whereas platformers operate supra-nationally which means that companies can forum shop. (Ireland’s more relaxed approach to data protection has meant that tech companies such as LinkedIn want to be head-quartered there under its rules despite operating over the rest of the EU where data protection is much more heavily legislated.)

There is a problem with sheer volume: a business may find that the regulations which apply to its services are so multi-faceted that working out what it can and cannot do becomes almost impossible (or at least prohibitively expensive once you have paid all the lawyers to work out what rules apply). One fintech lawyer tells me that regulations in financial services are such that it is “beyond our capacity to handle them”.

In a paper published last year as part of the LSE’s Working Papers series, Michèle Finck argues that our only hope may be something called ‘co-regulation’ whereby regulators work with tech companies to come up with a set of rules together:

“We need to recognise that regulation could be more of a ‘process’, a collaborative effort between authority, industry and other stakeholders.”

There’s a good example in relation to Airbnb and the city of Amsterdam, cited in Finck’s paper. The public policy challenge of Airbnb is the disruption it is causing to the traditional rental market so that people who actually want to live and work in Amsterdam can’t find affordable and stable housing. This in turn is leading to the city (and others like it such as Florence) rapidly turning into a city for visitors rather than a city with visitors.

These concerns culminated, in 2014, in Airbnb signing a memorandum of understanding with the city of Amsterdam which puts a cap on the number of days a home can be rented out (currently 60). Though there have been question marks raised about some Airbnb hosts breaking the rules, this is a good start: tech company plus public authority work in tandem to meet a public policy objective.

There’s more. The new ‘co-regulated’ rules are relatively easily put in place and enforced: the platform just tweaks its algorithm. Airbnb also collects a tourist tax for Amsterdam, again, a simple reprogramming of its algorithm makes this possible. As Finck puts it, compare this form of tax collection with a traditional one:

“[E]nsuring tax compliance is a costly burdensome task for public authorities, too often qualified by limited success.”

Comparing Airbnb and Uber usefully demonstrates the potential for co-regulation: whereas Uber has a serious public image problem, spending more and more time in court and with lawyers (Hogan Lovells is representing Uber in the UK), losing CEOs alongside all the law suits, Airbnb maintains itself as a “trusted” platform, a company which, to some degree, has some of those ‘morals’ we were talking about.

This is the first in an occasional Legal Cheek Journal series, looking at new and interesting legal research. If you are working on a paper or research which you’d like to share with Legal Cheek, email us.

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The decision in the case of UNISON v Lord Chancellor has led to one of the biggest changes in the employment tribunal since the fees regime was introduced in July 2013.

Some four years after the introduction of fees in the employment tribunal and Employment Appeal Tribunal (EAT), the Supreme Court has ruled that the fees prevented access to justice and were unlawful as a matter of English common law and EU law, as well as being unlawful under the Convention on Human Rights. Consequently, fees in the employment tribunal were scrapped with immediate effect from 26 July 2017.

Prior to July 2013, there were no fees for issuing claims in the employment tribunal.

In July 2013, the Fees Order introduced fees into the employment tribunal, dividing claims into two categories: Type A and Type B claims and the cost varied depending on the type of claim that was issued. Type A claims, which were generally claims relating to statutory redundancy, unlawful deduction from wages and breach of contract, cost £390 (issue and hearing fee combined). Type B claims, which were generally claims relating to discrimination and whistleblowing, cost £1,200 (issue and hearing fee combined).

Following the introduction of the regime, the tribunal service experienced a downturn in the number of claims being issued and by October 2013, it was estimated that there had been a reduction of nearly 70% in the number of employment tribunal claims issued. UNISON, the public sector trade union, challenged these fees, claiming that they prevented access to justice for many claimants, especially those with lower incomes.

UNISON’s challenge began in February 2014 by way of judicial review, followed by further proceedings in September 2014 and August 2015, all of which were unsuccessful.

The Supreme Court heard UNISON’s case in March 2017 and it was at this stage that UNISON experienced its first ground-breaking success, with the fees regime being abolished with immediate effect. As with any change in the legal system, questions have arisen as to what the abolition of fees will mean for the tribunal system. While it is still early days, the potential impact of this decision warrants consideration.

Increase in claims

While official figures have not been released, it has been reported anecdotally that there has already been a marked increase in the number of claims being issued at employment tribunals, in both England and Wales. While this is of no surprise, this will cause some concern to employers and is likely to make them more aware of the risks they take when dismissing individuals. Employers will have to accept that if a decision is likely to be unpopular with the workforce, it is now more likely to lead to legal action being taken against them.

Although the increase in the number of claims is predictable it is unlikely that we will see an increase to the pre-Fees Order level. The ACAS Early Conciliation process, introduced in April 2014, is still a mandatory step for all potential claimants. It is probable therefore that this procedure will still keep a proportion of claims out of the employment tribunal, by resolving them ahead of the issue of proceedings.

However, employers may need to reconsider how actively they engage in the ACAS process, as the tactic of waiting to see whether a claim is issued before engaging with settlement discussions is unlikely to apply now, as potential claimants no longer face the initial hurdle of having to find the money to issue a claim. One potential outcome may be that we see more cases being settled during the ACAS Early Conciliation process, thus putting a greater strain on ACAS.

Alternative fee regime

Although the Supreme Court found that the employment tribunal’s fee regime was unjust and prevented access to justice, the justices did not rule out the possibility of the government introducing a fee structure that would be lawful, with fees perhaps being at a lower level or on a different charging scale, which takes into account the potential value of the claim.

Although this is a possibility, we believe that there’s unlikely to be a new fee regime introduced as a matter of priority, especially while Brexit negotiations are ongoing. The government will also be aware that they have been successfully challenged once and they will therefore want to ensure that any new regime that is introduced is considered to be lawful, to avoid the embarrassment of being challenged for the second time.

Employment tribunal fees refund?

Not only did the Supreme Court scrap the fees regime, it also declared that all those who had paid fees would be refunded.

This has caused some concern, as it is possible that a claimant may be able to double recover, unless a sophisticated system is introduced to issue these refunds.

In many cases, when a claimant was successful at the employment tribunal, the respondent was ordered to pay the value of the claimant’s employment tribunal fees in costs. If a simple system of refunding all claimants their employment tribunal fees is introduced, many claimants will recover money which has clearly been paid to them by the employer.

Although no decision has been made as to how such refunds will be issued, careful consideration will need to be given to this stage of the process. A system will need to be introduced that obtains information from both parties, to clearly assess whether a refund is due. It is therefore likely that we will experience a delay in claimants receiving refunds, until an agreed process is announced.

Impact on the tribunal service

A reduction in the number of claims from 2013 and cuts within the judicial sector has led to the administrative services within the employment tribunal being slimmed down. With claims set to increase, this is likely to put a strain on the employment tribunal. Many claimants and respondents are likely to see delays in the case management of claims, as the employment service readjusts and adapts to the changes in volumes of cases.

Increased trade union activity

Although UNISON was unsuccessful at every court before the Supreme Court, the group’s ultimate success and the publicity it has attracted could encourage membership of trade unions and support for trade union activity. Without the support of UNISON, it is unlikely that this case would have been brought by an individual.

There remain some uncertainties about how the abolition of tribunal fees will impact on those involved in litigation, or even potential litigation, but one thing is certain: the process to bring a claim is now free, allowing access to justice for all and thus creating an increased risk to employers.

What next?

The case is a watershed for the government, employers, employees and the tribunal system. It is likely to mean increased claims, and that the balance of industrial power has shifted towards employees and trade unions, for the first time in many years.

Caroline Mathews is an employment and benefits associate at Mayer Brown.

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The recent exercise by Deliveroo in promulgating Newspeak, perhaps better known as its attempt to tie itself up in semantic knots by avoiding any talk of its workers as actually being workers, unsurprisingly exposed the delivery firm to scorn and ridicule.

Yet as the world adapts to the advent of the automated age, and the effects of the accompanying digital revolution, industrial relations may be well set to evolve along similar lines, where flexibility on both sides is a prized characteristic of industrial relations. If that’s so, then the law needs to evolve its approach and become just as flexible.

Back in 2014, PriceWaterhouseCoopers released its Three Worlds model of what employment might look like come 2022. Sprinkled in between the corporate dystopia of the Blue World, where people are effectively joined at the hip to the company they work at from birth to death, and the highly regulated Green World, in which a social backlash against corporations has led to a global imposition of potentially onerous if well-intended regulations, the Orange World seems to be a more realistic bet.

In the Orange World, specialised workers maximise their opportunities through digital self-marketing, at the cost of job security. People tend to develop their career through multiple jobs, often of a short-term nature, with most companies being smaller and more flexible, and taking on, or letting go, of employees as circumstances require. This is a world where so called portfolio careers are the norm, with people working multiple jobs in order to pursue their ambitions, or just to make ends meet.

The Orange World tends to be more of the former, or least that’s the optimistic gloss put on it by PriceWaterhouseCoopers. It foresees a world in which the likes of Uber and Deliveroo go from being easily castigated pariahs to the standard template for a typical firm.

Not that all the power will end up in the hands of the big corporations. As workers become more self-employed contractors, and each person becomes more experienced and adept in marketing themselves, their bargaining power increases. This allows them to negotiate more bespoke contracts, which leads to a greater work-life balance.

What kind of a world that will lead to is still a matter of debate, with plenty of literature on the subject to be found spread across the internet, but the challenge for the law seems clear: knowing when to get involved and when to step back.

Take an area that has already caused major contention: worker benefits. If most people work for companies on a very short term basis, or else only for a small amount of the week, then where should the law draw the line in terms of benefits? If I do 15 hours for firm A, and 15 hours for firm B, then do both of them need to give me statutory sick pay, or mandatory holidays, especially if I work from home on a regular basis?

By the same token, if people can expect less benefits from individual employers, then does the state step in with some kind of expanded national insurance scheme that doesn’t just pay for social security and the NHS but covers everything from payments for when you’re sick or suddenly redundant to pensions? These will be questions for the law, and lawyers will need to consider how to make their own approach just as flexible as the workplace they are attempting to regulate.

Another similar area would be how to best help people protect their reputations.

Look at a lot of the literature on portfolio careers and one of the key attractions stressed by proponents, besides being able to take the afternoon off, is that people are paid based upon the quality of their work and not simply because they’re in the office for eight hours a day five days a week.

PriceWaterhouseCoopers talks of such work being measured by a ratings system, like the one used by buyers to rate sellers on eBay, or by Uber drivers and customers to rate each other. Such things have already been highly discussed, yet look around the internet and you’ll find no shortage of people readily confessing to deliberately giving contractors and customers poor ratings out of spite or annoyance rather than based on a genuine reflection of their work or attitude. In such circumstances, slander and even defamation are words you’re more likely to hear in a world where people work for multiple employers at any one time and market themselves as their own unique brand. At what point does the law step in and decide that a moment’s irritation and lack of thought has become a deliberate attempt to undercut another person’s business by besmirching their character?

The law will also need to become much more accessible, and able to quickly meet the needs of those using it. So law graduates may well be more inclined to set up their own law firms, specialising in niche areas and catering to very select markets. Whether or not such firms — which might be very small, consisting of maybe only two or three lawyers and being based well outside cities and towns — come to be the norm and a true threat to the bigger players remains to be seen.

All of these issues, and more, will need to be considered, and now rather than when they crop up later. Neither the law nor its practitioners can simply afford the luxury of plunging blindly into this changing, more flexible world and hoping for the best outcome. The law itself will need to evolve and keep pace with this changing marketplace if it is to remain fit for purpose, and how best it can do that requires thorough consideration so that those who will be driving this change are best prepared.

Gareth Wood is a graduate in European Politics Society and Culture from Lancaster University. He is now studying the GDL at the University of Law.

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The so-called gig economy is slowly becoming a traditional means of employment.

With the growth of companies utilising this form of labour (Deliveroo, Uber), and five million people in the United Kingdom currently working in this capacity, the means of work has come under the spotlight of courts and tribunals, as well as having attracted the attention of the Department for Business and the Office for Budget Responsibility.

The gig economy is characterised broadly by individuals getting paid for the ‘gig’ that they carry out on behalf of a certain company. This company’s business utilises technology that facilitates and enables people to dip in and out, performing a task at will. This could be, for instance, delivering a Chinese for Deliveroo or dropping the lads off for Uber. In theory, one could do the former at seven o’clock and the latter at eight.

The utopian vision of the gig economy is that it will enable people to achieve the freedom and opportunity of self-employment. Gig economy participants are classified as ‘independent contractors’. They can accept or reject work at will and their profits are limited only by the hours they put in, since they are not constrained by an hourly wage. For the employers, this flexibility means that they do not fall subject to the onerous requirements of the Employment Rights Act 1996 (ERA).

Comparability of consideration

Briefly, before looking at Her Majesty’s Courts and Tribunals’ interpretation of the relevant employment legislation, and its examination of the nature of the relationship between these companies and their ‘workers’ in reality, it is worth noting something. The gig economy only retains its legitimacy in a non-legal sense so long as the balance in benefits accruing to the ‘worker’ and the company is maintained. As soon as there is disequilibrium between the benefits accruing to either party, the legitimacy of the gig economy in its current form must be rethought.

Aslam and Farrar v Uber

Aslam and Farrar was decided in October 2016 in the Employment Tribunal.

The claim was brought by current and former drivers for Uber ostensibly with a view to gaining classification as ‘workers’ for the purposes of the ERA, the National Minimum Wage Act 1998 (NMWA) and The Working Time Regulations 1998 (WTR) in order to obtain remuneration at the minimum wage and paid leave. Uber denied that the claimants were ‘workers’. They also pleaded jurisdictional defences but these are not worth going into here.

Under section 230(3)(a and b) of the ERA, a ‘worker’ is someone who either works under a contract of employment (not applicable in the instant case) or:

[A]ny other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.

The key here is that the individual undertakes to perform personally the work required under the contract. Thereafter, of course, the worker accrues their relevant employment rights (paid leave, the minimum wage, freedom from discrimination, etc).

The issue for the tribunal was determining whether the nature of the claimants’ relationship with Uber constituted that of a worker and an employer in reality, notwithstanding the contents of the contract between the parties. Uber classified itself as an “agent” (para 28), acting as a “technology services provider” (36), with the driver constituting a sole trader who provides driving services to riders with whom they have a contract. According to Uber’s terms of service, Uber is merely an intermediary platform. The tribunal, though, looked and will look beyond mere words, and will assess its reflection of reality.

Worker or employee?

Citing Byrne Brothers (Formwork) Ltd v Baird & Others, the tribunal in Aslam and Farrar considered the intention of including ‘worker’ in the legislation as something separate and distinct from an ‘employee’. In order to determine who fell within this category, the tribunal looked to Recorder Underhill QC, who said:

The reason why employees are thought to need such protection is that they are in a subordinate and dependent position vis-à-vis their employers: the purpose of the regulations is to extend protection to workers who are, substantively and economically, in the same position. Thus the essence of the intended distinction must be between, on the one hand, workers whose degree of dependence is essentially the same as that of employees and, on the other hand, contractors who have a sufficiently arm’s length and independent position to be treated as being able to look after themselves in the relevant respects.

As elucidated by Elias J in James v Redcats (Brands Ltd):

…[T]he dominant purpose test is really an attempt to identify the essential nature of the contract. Is it in essence to be located in the field of dependent work relationships, or is it in essence a contract between two independent business undertakings?

Asymmetry of bargaining positions

The fundamental purpose of employee protections fought for by unions and now codified in the ERA, etc, is the redress of the asymmetry in bargaining power between workers and employers. The fact is employers have far deeper pockets than the people working for them — and have access to better lawyers — so will simply engineer contracts that define the working relationship as one thing, when in reality it is something different.

While the tribunal agreed with counsel for the respondents that there was no prohibition against being a ‘dormant’ driver and not logging into the Uber app and that such freedom was contraindicative of an employment/worker relationship, it did consider that: 1) once the app was switched on, 2) the driver was in working ‘territory’, 3) and was willing and able to accept assignments, then a ‘worker’ contract had arisen (85 and 86).

Most interestingly the tribunal — referring to Uber’s complex documentation, which they opined to have contained, “fictions, twisted language and even brand new terminology” — was minded to quote Queen Gertrude (“The lady doth protest too much, methinks” (87)). This highlighted the fact that the tribunal will not be persuaded by grand legal machinations and highfalutin language. The tribunal will not be swayed by the charming implorations of a strong bargaining position.

Self-employed by name…

Paragraph 90 of the judgment in Aslam and Farrar contains reference to one of the most important issues in this area of the gig economy.

The tribunal asserted:

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.

The tribunal went further and rejected the respondent’s case that Uber assisted drivers to grow their business: “no driver is in a position to do anything of the kind, unless growing their business simply means spending more hours at the wheel.”

In addition, the bench noted that Uber dictated that drivers must accept at least 80% of trip requests (51), that drivers who reject three trips in a row will be forcibly ejected from the app for 10 minutes (52), that drivers are expected to follow the route dictated by the app’s mapping software (54), and that they have no leeway to negotiate and strike a bargain with riders.

These issues speak directly to the arguments that generally comprise the contemporary punditry and debate surrounding the gig economy outside of law courts. The tribunal’s point belies the insistence of gig economy proponents that participation in it builds opportunity and freedom that one would not otherwise be able to attain. Though the argument is that Uber drivers retain independence over their business and the freedom to expand it, the reality, it seems, is different.

The reality is that an Uber driver, for instance, is just as committed to offer his services to Uber solely, just as as a worker would be, and thereafter his options for expansion or promotion are restricted. His potential advantages — flexibility and growth-room — seem to be non-existent outside of pretty theory.

As the tribunal noted: “Uber runs a transportation business. The drivers provide the skilled labour through which the organisation delivers its services and earns its profits.” Therefore, in insisting that its drivers are independent contractors, Uber are providing de jure flexibility, but receiving de facto personal service (with its attendant financial advantages) and are disproportionately and unfairly gaining benefit through avoiding their responsibilities under English employment legislation.

In addition, and linked to the above point, the Uber drivers were obligated to be available for rides as and when they were ready. This was in pursuance of Uber’s aim of being a convenient ‘taxi’ service offering cars as soon as they were required. As such, drivers spend time idle and waiting, and effectively not earning any money. This is in conjunction with being subject to the impositions upon them (100).

Words v actions

The fact of the matter is that the tribunal did not believe Uber’s documentation and representations as to the position concerning its drivers. It deemed that the situation in reality did not provide enough flexibility to the drivers to enable them to be considered ‘independent contractors’. They wanted to keep their drivers at arm’s length in terms of looking after them, but at the same time exert employer-level control over them (92).

The tribunal found that Uber drivers were ‘working’ for the purposes of the WTR at the very least from the moment a trip began to when it ended and that time spent working may at most include time spent travelling to or waiting for a ride, so long as that travel/wait was undertaken within the driver’s ‘territory’ (121 to 124). In addition, the tribunal deemed that Uber drivers undertake ‘unmeasured work’ for the purposes of the NMWA, meaning that they are to be beneficiaries of the minimum wage.

It must be borne in mind that Uber will appeal the tribunal decision and the specificities of the drivers’ position in law still need determining. This decision is by no means conclusive.

Pimlico Plumbers v Gary Smith

Similarly, Pimlico Plumbers, which was decided earlier this year and is the highest judicial decision in relation to the gig economy so far, was decided in favour of the claimant (the respondent on appeal). This was inter alia because the terms of the contract did not reflect the actual working relationship between the claimant and Pimlico Plumbers.

Indeed, the litany of gig economy litigation appearing from the courts and tribunals can most aptly be summed up thus far as the relevant companies trying to both have their cake and eat it.

The wider picture

While the decisions in Aslam and Farrar and Pimlico Plumbers are indicative of the courts’ views of enterprises that function within the gig economy and which have come to define it, it is worth zooming out to look at the broader picture in order to better determine whether the decision seems to herald a welcome trajectory, or whether it appears misguided.

The tribunal in Aslam and Farrar did concede that it was possible to create a business model in which the drivers were legally self-employed, but that in the instant case Uber had failed to properly encapsulate this business model (97). This was due to the fact that the symmetry in benefits accruing to both parties (or the comparability of their relevant consideration), as mentioned at the start of this piece, was non-existent.

Uber tried to assert too much control over its drivers, negating the perceived flexibility of the role, while at the same time rejecting the legal responsibilities and benefiting financially as a result. Simultaneously, the claimants in either case were subject to the requirements of self-employed individuals, such as the claimant in Pimlico Plumbers having to buy his own equipment (32), while being at the same time subject to worker-level constrictions and limitation of growth.

Indeed the second claimant in Aslam and Farrar told the BBC that his net earnings after expenses in August 2015 amounted to £5.03 per hour. This is of course below the minimum wage and far below the living wage. In a relationship that exhibits all the legal hallmarks of that of a worker and an employer, in which the worker bears the risk but is impeded from recouping the proportionate reward, that is unacceptable. It is a microcosmic example of socialisation of risk/loss, and privatisation of gain.

The difficulty here in terms of the spirit of employment law is that it must seek to facilitate enterprise and entrepreneurship. It must seek not to stifle the potential of the free market and its participants, but it must also protect labour and ensure it is not exploited. While the idea behind the gig economy is sound in theory — it promotes enterprise and affords people the opportunity to control their income, their hours, and to achieve whatever their motivation and their work allows them — the reality of it does not accord with its theoretical aim.

Uber has exploded into a global entity. It has become the status quo where once it was the upsetting insurgent flipping the tables of traditional employment. Its new position as a behemoth brings with it an asymmetry in bargaining power between the company and its drivers. It brings with it an impetus on the part of the company to ensure that the standards for which it is known are maintained, and with that comes a need to seek greater control over the drivers. It also brings with it greater profit margins. As such, it is the right time for the courts to step in and determine where Uber’s business model, the reason for its incredible success, stands in the eyes of English employment protections.

If they do not, it is the natural path of the free market when left to its own devices to abuse and exploit labour. In a post-recession, automation-poised, qualification-saturated economy of constricted choice for workers and near infinite choice for employers, the courts must ensure that labour is not abused as a result of necessity. That is one of the fundamental purposes of employment law: to even out the relationship between employer and employee, renter and owner, worker and boss.

What next for the gig economy?

One hopes that the idea of the gig economy does not die, since it is suitable for a changing, more flexible, more mobile, more global economy. One hopes simply that it is better implemented.

This means that companies that adopt this model draw more fairly the balance between freedom/responsibility for the worker, and abdication of legal obligations/sacrifice of consistent service standards and greater profits for the company.

Companies must accept that if they adopt a ‘gig’ model, they necessarily abandon an element of control, they necessarily empower their ‘workers’, and they necessarily occupy a bargaining position of less power than that of employers. That is the trade-off for companies: fewer overheads, less bureaucracy, less admin, thinner profit margins, less control.

William Richardson is a paralegal. He completed his law with business degree at Brighton University and then a master of laws degree at UCL.

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