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Uber appeal loss- What does it mean for the future?

BY Donald MacKinnon
Employment Law & HR
BG Purple

Uber has lost it appeal against the Employment Tribunal’s decision that its drivers are workers and not self-employed contractors. What impact will this decision have? Well, this decision does not tell us anything new, it simply confirms what we thought to be the case already. That being, that these drivers are not in business in their own right and work for Uber under a ‘worker’ contract, therefore are entitled to some employment rights including the National Minimum Wage, paid breaks and holiday pay. Uber have stated that they intend to appeal this decision, possibly bypassing the Court of Appeal and going direct to the Supreme Court (by joining onto the Pimilico Plumbers case on the same issues)

It is important to reiterate the impact that this decision may have, not just for the well-known ‘gig economy’ companies like Uber and Deliveroo but also for other industries such as hospitality who may operate in a similar way. The clouds are beginning to gather for businesses who run this kind of model as not only have they seen this decision upheld in a high profile case, they have also seen the removal of tribunal fees so it is possible that there will be a spike in the number of cases of this kind.

It is still possible that if the case goes to the Supreme Court that they will decide that each court up until then had got it wrong and we will be back to where we were at the start of this process, but the Uber argument that there are 30,000 small businesses operating in London and they simply act as an agent has been dismissed with scorn by the judges in the hearings so far and their prospects don’t look good at this stage.

Until this goes to the higher courts, this decision by the EAT is binding on all equal and lower courts so businesses who run this model will need to be careful to ensure that they have their workers under a contract that reflects the reality of how they work.

The Taylor review, published in the summer suggested that the category of ‘worker’ should be removed and replaced with a ‘dependant contractor’ status to reduce some of the confusion surrounding this issue. Ultimately, due to the category of ‘worker’ under the Employment Rights Act 1996, it is likely that there will always be argument whether an individual fits into one category or the other, but what the courts or legislation has a duty to do is provide clear criteria for business and individuals that gives the correct balance between the freedom of businesses and right of workers.

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