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More gig economy developments

PS
BY Paman Singh
Employment Law & HR

Another chapter in the “gig economy” saga was published recently with the Employment Appeal Tribunal handing down the judgement in the Addison Lee case. It was found in this case that drivers for Addison Lee were workers and not self-employed as argued by the Company. The EAT decided that the contractual documentation characterising the drivers as self-employed contractors, did not accurately reflect the true agreement between the parties.

The EAT found that the Tribunal was entitled to take a "realistic and worldly wise" approach and to find that the contractual documentation did not reflect the reality of the arrangements. Therefore, in this case, it was acceptable to look beyond the contract to determine what the actual relationship was between the parties.

Although both involve drivers, cars and passengers, Addison Lee operate slightly differently from Uber and drivers are provided with a handheld device called the XDA. When ready to work, they log in to the system which then allocates them work according to location. When a job is assigned to a driver, they are expected to accept it and must give an acceptable reason for refusing. There may be sanctions for refusals.

This in turn led the EAT to decide that there was a mutuality of obligation which goes to the root of the employment contract. It further agreed that when the drivers were logged on to the Addison Lee system they were classed as workers and the Working Time Regulations applied.

This saga is far from over and we await the judgement from Uber’s Court of Appeal case that was heard at the end of last month.

In addition, it has been suggested that several key recommendations of the Taylor Review may finally be implemented. If true, this could mean the following proposals are enacted:

  • A right to request a fixed-hours contract after 12 months working on a zero hours contract.
  • Changes to the calculation of continuous employment, to allow workers to build up rights which might not otherwise accrue.
  • Changes to notice periods and a right to cancelled shift payments.
  • Tackling non-payment of tribunal compensation awards by naming and shaming those employers which do not pay, along the lines of the existing register for non-payment of the national minimum wage.
  • Bringing tax and employment laws on status into line.

It is believed that the government may also attempt to codify in legislation the test for employment status. At present, it relies on an assessment of many factors against the circumstances of each individual case.

If you have any concerns over the employment status of your workers or contractors, please get in touch with our Employment Law or HR team who will be happy to help you.

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