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Update on ‘Gig Economy’ Case Law and Developments

Welcome to the new modern work structure: the gig economy. Where temporary positions are prevalent, freelance work is the norm and organisations contract with individuals on a short-term basis. In this article we will explore the high-profile tribunal cases of 2017 which have kept the ‘gig economy’ making headline news. 

Aslam and others v Uber BV and others 

The tribunal found that the drivers were not ‘self-employed’ but ‘workers’. Uber presented its business as a technology platform which facilitates the connection of self-employed drivers with customers through the Uber app. On the facts, the tribunal disagreed with this and found that this did not reflect the practical reality. In the tribunal’s view, the drivers were working for Uber from the point the app was switched on. The fact that the drivers were within the working territory in which they were licensed to use the app and were able and willing to accept assignments defined them as a ‘worker’. Uber has since appealed to the Supreme Court; whether its decision will provide any further clarity for companies in determining employment status remains to be seen.

Pimlico Plumbers and Anor v Smith 

Mr Smith was described as ‘self-employed’ in his contract. He could choose which jobs he took on, worked with his own tools and dealt with his own tax. However, Mr Smith was required to wear Pimlico’s uniform, use a van leased from Pimlico containing a GPS tracker and work a minimum number of hours per week. There was no contractual term allowing Mr Smith to send a substitute to do the work, but the plumbers could swap jobs. On termination, Mr Smith brought claims for unfair dismissal and disability discrimination. He was found not to be an employee and so could not bring an unfair dismissal claim, however, was found to be a worker and therefore, able to bring a disability discrimination claim. This case has just been heard in the Supreme Court and the outcome of this case is expected to set a clear precedent for employment rights disputes within the gig-economy, with many speculating that its outcome will have far-reaching consequences for a range of companies and industries.

Dewhurst v CitySprint UK Ltd

Ms Dewhurst was employed as a cycle courier for CitySprint UK and worked for the company four days a week during which she could not reasonably have been expected to take on other work. Couriers received training during the recruitment phase and did not provide invoices but were paid each week by the company who calculated their pay. Having examined the reality of the relationship, as well as the contractual documents, the Tribunal held that Ms Dewhurst ‘was working not for herself with CitySprint as her customer but on [their] behalf’. It was determined that Ms Dewhurst was a ‘worker’ rather than ‘self-employed’ and was therefore entitled to employee benefits.

Boxer v Excel Group Services Ltd 

In another case involving cycle couriers, the claimant, Mr Boxer, argued he should be entitled to holiday pay as an employee rather than being viewed as a self-employed contractor. It was decided that he was entitled to the rights of an employee as although his contract specified that it was a non-exclusive agreement, he was expected to be available throughout the working day for nine hours a day five day a week. The tribunal also noted that Mr Boxer could not negotiate the tariff or terms of his contract, was paid a fixed rate and had to give notice for time off, among other reasons. The tribunal held that Mr Boxer was therefore an employee entitled to holiday pay rather than a self-employed contractor. 

As the modern economy gives rise to ever more creative work models, the question of employment status and the entitlement to statutory employment rights is increasingly complex. From this case law it is clear that there is no one size fits all formula that can be applied to determine the correct status; each case is fact specific. 

If you need help and advice in relation to employment status, please do not hesitate to contact me or the employment team on 0113 350 4030 or at hello@scesolicitors.co.uk.

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SCE Solicitors is a boutique employment law practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Richard Newstead
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Richard Newstead

Richard qualified as a Legal Executive over 20 years ago and has significant experience in Employment law and Litigation. Richard acts for both employers and employees drafting and advising on settlement agreements, contracts of employment, consultancy agreements, directors service agreements and general workplace policies. He acts for commercial clients in the employment tribunal dealing with unfair dismissals, constructive dismissals and claims for discrimination.

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