So far this year we have seen two significant, and apparently contradictory higher court judgements considering worker status in the UK. In February Uber lost the final round in the Supreme Court of a claim brought against them by some of their drivers: Earlier in July the Appeal Court found against the Independent Workers Union of Great Britain (“IWGB”) in its appeal on behalf of some of Deliveroo’s riders. Whilst apparently contradictory, both judgements were based on the specific facts of each case and, more importantly considered different aspects of the legal test for Worker Status. In our previous commentary on the Uber case we considered the three different classes of Employment Status afforded to individuals in the UK and in both the Supreme Court and the Court of Appeal judgements the judges agreed that the starting point for employment law cases must be to look at the day to day reality of the engagement, rather than simply considering the written contractual framework which the parties have put in place.
In the “Uber” case the Supreme Court ruled that Uber drivers should be treated as “workers” and thus granted certain Employment Rights such as National Minimum Wage and paid holidays not least because:
- The drivers had no way of influencing the fares they charged, as a self-employed person should normally be able to do:
- Uber dictated the contractual terms of the relationship, which were not open to negotiation by the drivers, and
- Uber exerted a significant degree of control over the day-to-day activities of drivers .
But in the “Deliveroo” case the Court of Appeal ruled that Deliveroo drivers should not be treated as workers (and thus able to bargain collectively via a trade union) because they were not obliged to perform their services personally. So, in a bit more detail the Court of Appeal ruled that:
- The Deliveroo riders are genuinely not under an obligation to provide their services personally and thus have a virtually unlimited right to substitution.
- The presence of a genuine and unfettered right of substitution is a “central feature” of an employment relationship.
- Whether or not the right of substitution exists cannot be based on how often (or if at all) a worker takes advantage of that right, providing that the right is genuine.
Interestingly, personal service did not really feature in the Uber judgement – but the Appeal Court reiterated the view that personal service remains the key to establishing the true nature of the working relationship. The Deliveroo judgement not only established that the Deliveroo riders were not required to carry out services personally but confirmed that whether or not an obligation for personal performance exists is the “sole test” as to whether an individual is a worker! It currently remains to be seen if the IWGB request leave to take the appeal to the last step in the process – the Supreme Court awaits.
