Effects of the Uber decision

In issue 192 of the Bottom Line Express, sent to you on 9th November 2016, we included an article explaining the Employment Tribunal decision given in the case involving Uber and its drivers.

In that case, it was found that the drivers fell into the category of ‘workers’, and not self-employed contractors as Uber had always contended. This is a significant decision because it effectively gives Uber drivers a number of basic employment rights which they would not have if they were truly self-employed.

The crux of the Tribunal’s decision was that the drivers were not “in business on their own account” and this was illustrated in many ways by analysing the particular way in which the working relationship between Uber and its drivers operates.

So what does “in business on their own account” mean? The following checklist indicates factors that will be present in an arrangement where the individual is in business on their own account:

• Provides their own workspace, tools and equipment;
• Works for fixed periods; or sets their own times of work;
• Has their own indemnity insurance;
• Is responsible for their own tax and national insurance;
• Can work for other companies;
• Takes on financial risk for sub-standard work;
• Submits invoices for work done;
• Provides capital.

This is not an exhaustive list to determine self-employment, and all factors within the arrangement will be viewed after painting a picture of all of the detail.

In the Uber case, the Employment Tribunal also took the following into consideration, identifying that Uber maintained a lot of control over working operations:

• Uber dealt with complaints against the drivers;
• It used procedures akin to performance management when drivers were scored below a set level by passengers;
• It did not pass all of the passenger’s information to the driver, just the first name.

Lead Employment Law Business Partner Jon Walker says: “Clearly the determination of someone’s employment status is a matter of fact taking into consideration all of the material elements. It is not simply a question of who pays the tax and national insurance”.