An Employment Tribunal has very recently issued a Judgment following a claim by drivers engaged by Uber, which ruled they are ‘workers’ within the meaning of the Employment Rights Act 1996.
This means that (subject to any appeal) all Uber drivers will be entitled to a limited number of employment rights, which they would not be entitled to if they were genuinely self-employed (as was argued by Uber). These rights include:
- an entitlement to 5.6 weeks’ paid annual leave each year;
- a maximum 48 hour average working week, and rest breaks;
- the national minimum wage (and the national living wage);
- protection under whistleblowing legislation.
It is important to be aware of the differences between employees, workers and those who are genuinely self-employed, keeping the Uber case in mind as a warning that the position may not always be clear cut.
An employee:
is an individual who works under a contract of employment and agrees to serve their employer personally. The employer will have a necessary degree of control over their actions, and there will be a requirement for work to be provided and for the individual to carry out that work.
A worker:
is an individual who works under a contract of employment OR any other contract and undertakes to perform personally the services for the other party to the contract. That other party will not be a client or customer. For example, a labourer who is a subcontractor in the building industry, and whose contract provides for a limited right of substitution, is likely to be a worker. So, where an individual is a contractor but does not reach the requirements to qualify as an employee, they may qualify as a worker.
A self-employed person:
is an individual who agrees to provide certain services to another person who is their client or customer. Self-employed individuals will not be prevented from working for others and generally be entitled to provide a substitute whenever they wish. Therefore, there will be no requirement for personal service.
Sometimes the employment status of an individual will be clear, but other times it will not be. And sometimes even when everyone thinks the position is clear, it is in fact, as a matter of law, different to what they think or intend.
If you have any questions on this or any other employment law issue, we are able to advise you. You can contact us on 0141 221 4488 or visit our homepage.
24 April 2023
Giles Woolfson
