When is a driver a “worker”?

One of the current “hot topics” in employment law, with the emergence of the “gig economy”, is the question of status – who is an employee, who is a worker, and who is self-employed?

The question is an important one, as the rights enjoyed by an individual depend on their status. Employees, for example, have the full range of rights including the right not to be unfairly dismissed. Workers do not have that right but do have other valuable protections enjoyed by employees, including protection from discrimination, limits on working time, and the right to paid holidays. The genuinely self-employed, in business on their own account, do not have these rights.

There has been a flurry of recent litigation, and the most high-profile claim was the case of Aslam against Uber. Mr Aslam operated a taxi service using the Uber app and claimed he was in fact a worker in relation to Uber, requiring them to provide paid holidays etc. The claim succeeded at the employment tribunal and all of Uber’s appeals failed, including at the Supreme Court. 

The Court emphasised that it is the reality of the relationship that is key – what the contract says is less important. The relevant factors included that Mr Aslam must do the work personally (could not use a substitute), fares were set by Uber, Uber monitored driver performance etc. There was a clear degree of control by Uber over the individual’s activities. Mr Aslam was in a dependent or subordinate relationship with Uber and deserved the protection that the law extends to workers.

The position was, therefore, that Uber drivers “work for” Uber and enjoy the rights that UK legislation gives to workers.

This can be a contrasted with a more recent decision, just announced by the Employment Appeal Tribunal (“EAT”), in the case of Johnson v Transopco UK Ltd.

Just like in the Uber case, the driver obtained taxi passengers through an app, in this case the Respondent’s “Mytaxi” app. It might be thought that a similar conclusion would be reached – that the individual driver was a worker.

However, the employment tribunal carefully analysed all the features of the relationship, considered the legal position, and concluded in this case that the driver was not in fact a worker. He was operating his own taxi business as a self-employed person. He was subject to less control than in the Uber case, and was not in a dependent or subordinate relationship.

The employment tribunal’s decision was upheld by the EAT. Mr Johnson would not therefore be entitled to the rights of a worker such as paid holidays.

What’s the key take away?

The key point to take from this is that questions of employment/worker status are very fact sensitive, and the outcome in one case will not necessarily be replicated in what seems to be a similar case. A tribunal will fully analyse all aspects of the relationship between the parties, in detail, before coming to a judgement.

Despite the outcome in the Johnson case, the trend is definitely towards more individuals being found to have worker status. The consequences of that can be significant with, for example, claims for backdated paid annual leave. For those businesses who use contractors, consultants, or other “self- employed” persons, it is important to review and consider the reality of the relationship (and not just what the contract says, or what “label” the parties give to their relationship) and assess the risks that these individuals may actually have the fairly extensive rights of a “worker”.

To discuss this issue, please contact our expert team of employment lawyers.

This update contains general information only and does not constitute legal or other professional advice.

Douglas Strang, Senior Associate: dst@bto.co.uk / 0141 221 8012

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