A brief view on reading The Uber Judgement.

A call to Main Contractors engaging the self-employed.

If I can be allowed to abuse a quote the Hitch hikers guide…. DONT PANIC…………. Yet.

This missive is not going to be a detailed treatise of the judgement, although be warned, I am working on it with others and a detailed white paper from Eazitax is on its way.

After a tribunal, an appeal and a final supreme court decision, a group of Uber drivers led by the charismatic Messrs Farrer and Aslam won a case against a passenger transport app to be entitled to class themselves as workers therefore entitling them to still be deemed as self-employed for status purposes but entitling them to minimum wage and holiday pay. 

Uber pleaded that they did not, actually, engage the self-employed drivers. They insisted that they merely provide a piece of technology and act as agents between driver and passenger. 

What Do We Learn?

The judgement in truth teaches us that ‘superficial’ changes to contract terms are simply not sufficient when deciding to treat people as self-employed.

Many issues were touched on, such as what and where is ‘work’.  In this example, does an app driver engaged and unengaged (passenger or no passenger) travel, add up to their total working hours, so how do their earnings show per hour pro rata and therefore when does national minimum wage kick in. A purely self-employed driver does not actually start earning until his punter is in the back. 

There were also some grey areas regarding app drivers accepting work from multiple apps and whether that affects their worker status during the waiting time. 

The Actual findings 

 Although the drivers were free to determine when and where they worked, the Supreme Court highlighted five points from the tribunal’s judgement as worthy of note: 

1) The remuneration was fixed by Uber: drivers could not determine how much passengers were charged.

2) Not only was Uber’s agreement with the drivers entirely dictated by Uber, so too were the terms on which drivers transport passengers.

3) Uber, not the driver, retains absolute discretion about whether it accepts a ride: the driver is not informed of a destination until a job is accepted, removing their right of refusal due to drop-off location. Moreover, the driver is penalised if they refuse too many jobs.

4) Uber exercises a significant degree of control over the way in which the driver provides services, with rating systems tantamount to performance management.

5) Uber restricts communication between driver and passenger: it is Uber’s passenger, not the driver’s.

In short this showed enough of an element of control, to find against Uber.

So Much Noise…

So, for main contractors with sub-contractors who do you listen to? And what is the urgency?

Well, we are hearing from the press is a lot of.:

This could happen… this might happen…. widespread speculation believes…We think the significance is.  …

Yes, But What does it Actually Mean To You?

Let us look at what this actually means to you today.

If you have already taken the time to bring in a suitable professional and addressed the engagement of your self-employed workforce, taken into consideration your working practices, and the importance of those practices being properly reflected in a written contract, that contract is as relevant as it was before the Uber judgement. 

Many of the points picked up by the judgement are usually already in the sights of a status professionals like us.  It has been observed that Uber’s contract was not the traditional Contract for Services that many of you have or should have, with your subbies.  Meaning the Supreme Court judges actually made their decision based on the specifics of the Uber arrangement.

Many commentators are pointing to the decision being relevant to the all-engagers of self-employed and sub-contractors, yet we know that all cases which might come before Tribunals, will need to be forensically examined based on the specifics of their own contracts and working practices.

This court was just the natural end of an appeal procedure for a tribunal and therefore did not create law, just something to be ‘considered’ for the next tribunal. 

However, I have no doubt Messrs Farrer and Aslam will be leading a charge for many more Uber drivers to go to tribunals and maybe even a class action, which will possibly lay the groundwork in the future for a sea change in sub-contractor to main contractor relationships and possibly influence the law makers to revisit status law.  

That is however a little way off, a closer issue will probably be copycat tribunals brought by   sub-contractors motivated to ‘try their luck’. 

In Conclusion

Do not be fooled however Uber’s loss has not happened because of some glitch in the legal system. They lost their initial tribunal but had the money and legal clout to appeal again and again to keep this sideshow going. 

What they had were complicated and unclear working practices hidden behind lots of tech talk and weighty legalese.

The point is nothing has really changed for us advice wise. I have always said that a standard templated contract which does not reflect reality, will not protect businesses from employment status and worker status claims. 

Your contract terms, media, contractor handbooks or training manuals for subcontractors as well as your day-to-day working practices must be considered as a whole to establish whether your subcontractors can legitimately be seen as self-employed.