In two contrasting “gig-economy” decisions the Employment Appeal Tribunal has decided against Uber, holding its drivers to be workers, whilst at the same time the Central Arbitration Committee has found Deliveroo’s bike couriers to be genuinely self employed.
The Uber decision means that its drivers are entitled to the minimum wage during periods when they had the Uber app switched on, and that they are entitled to holiday pay and paid rest breaks.
Uber has said it will appeal the decision, saying “Almost all taxi and private hire drivers have been self-employed for decades, long before our app existed. The main reason why drivers use Uber is because they value the freedom to choose if, when and where they drive and so we intend to appeal. Over the last year we have made a number of changes to our app to give drivers even more control. We’ve also invested in things like access to illness and injury cover and we’ll keep introducing changes to make driving with Uber even better.”
Counsel for Uber had previously commented that they may try to skip the next appeal stage to the Court of Appeal by applying to join the claim with the claim of Pimlico Plumbers which is due to be heard by the Supreme Court in February, although we understand that this has been rejected by the courts and the case will proceed to the Court of Appeal.
The GMB union, which supported the drivers’ claims, has urged Uber not to “waste everyone’s time and money dragging their lost cause to the Supreme Court”.
By contrast, the Central Arbitration Committee (the body which rules on disputes between employers and trade unions) found that Deliveroo’s bike couriers were genuinely self employed and therefore the staff are not entitled to trade union recognition. Key to the decision was the fact that the Deliveroo drivers could send a substitute to work in their place so they could not be said to be under an obligation to provide work personally. Whereas Uber drivers cannot freely substitute other drivers and they may be blocked from using the app if they do not accept at least 80% of trips.
The decision of the CAC will not be binding on employment tribunals and there is a separate employment tribunal claim brought on behalf of Deliveroo riders, which is due to be heard by the Employment Tribunal in July 2018.
Matthew Taylor’s recent report for the government on the gig economy recommended a move away from a reliance on the personal service / substitution test, with a focus instead on the level of supervision and control which an individual is under.