High profile cases involving self-employed workers at Citysprint and Uber are the tip of the iceberg according to a leading employment law expert who is warning businesses regularly using gig workers to brace themselves for similar claims.
Nick Rowe, partner and head of the employment team at Midlands and South West law firm Lodders, believes that the Uber case has opened the floodgates and that businesses relying on similar business models and technology for self-employed individuals to log-in to an app to report availability for work, could be open to tribunal claims from individuals dissatisfied by their entitlements.
It is an ongoing tension in employment law and the framing of individuals as self-employed when they are clearly not, is not a new phenomenon, he says. However, judges have broad scope to look at all the circumstances of individual cases and decide one way or another based on all interlinking factors. The employment status of individuals has become less easy to predict with the introduction of the category of worker, which catches those who are not employees but arent self-employed either, as demonstrated by the most recent cases.
His warning comes as the Foster Carers Union has said it aims to challenge the status of foster carers as self-employed. This is in the wake of the recent employment tribunal that held a cycle courier for Citysprint was a worker as defined by the Employment Rights Act, in a case which shared some similarities with the tribunal ruling against Uber in October last year, and resulted in the Citysprint courier successfully claiming two days paid holiday.
Nick Rowe says that for these workers and indeed any gig economy workers operating along a similar model to Uber and Citysprint, a precedent may have been set for judges reviewing comparable cases.
see little difference between reporting duties via an app, especially if this is how work is organised and allocated, such as reporting to a depot to sign on at the start of a shift of a delivery driver, he says. Online marketplaces have also been included in the definition of the gig economy, and appear to factually fit the marketplace for self-employed definition that Uber attempted to argue.
Key decisions will be based on the application of the tests for self-employed status, particularly the control exercised over an individual and whether they are in business on their own account.
He adds: Individuals dissatisfied enough with the terms and entitlements of their working lives, inspired by the Uber and similar recent cases, and who have the tenacity to bring a tribunal claim, may now be more highly motivated to seek judicial intervention, as is the case with the Foster Carers Unions recent announcement.
CEnforcement is an important issue and the onus is on the aggrieved individual to bring the claim to assert their employment rights.
Employers operating in the gig economy must take heed, he says. Responding to a government consultation regarding future work at lowering tribunal fees, the Law Society has suggested shifting some of the burden of enforcement to the employer. The outcome and appetite for this proposal remains to be seen, and I expect it will be met with strong resistance from employers, but certainly the gig economy movement is gathering momentum.
The gig economy business models apparent success is down to lower costs from regulation that delivers a clear unfair advantage over their competitors. Combined with an increase in flexible working in general, and specifically this type of gig model, it is perhaps inevitable that we may see growing appetite from the workers themselves to pursue the best terms of employment as possible. Whilst employment law is unlikely to change to address the developments; employers really must take note and take legal advice in anticipation of the floodgates potentially opening as judges apply the existing rules to new circumstances.
Lodders is a premier law firm in Cheltenham, the North Cotswolds, Gloucestershire and Warwickshire.
Established for over 230 years, Lodders in particular works with private individuals, business owners, family businesses, landowners, rural communities, real estate and property owners, developers and investors. The firm has 25 partners, a portfolio of sector and market specific legal teams, over 130 fee earners and support staff across its office network, and has recorded year-on-year growth in recent years.
For more information, visit: www.lodders.co.uk