Worker Status – Uber & what’s to come

It’s been six months since the Supreme Court (SC) handed down its judgment in the case of Uber BV and others v Aslam and others [2021] UKSC 5 (Uber). As such we are dedicating this week’s newsletter to an assessment of how Uber has affected worker status cases in the tribunals so far.  We will also consider future developments for worker status and how our clients can begin preparing.

Uber – a recap:

For a fuller dissemination of the Uber judgment see our previous newsletter here. For a general look at worker status, see our factsheet here.

In summary, the SC found that the Claimants were workers, and their key findings were as follows:

• The starting point to assessing worker status is the legislation NOT the contract. This is not a controversial statement, in and of itself, but it does point perhaps to a feeling within the SC that tribunals have been placing too much emphasis on the contractual terms.
• Tribunals should take a purposive approach to assessing worker By this, the SC is requiring tribunals to understand the purpose behind the legislation and the protections that the legislation affords individuals and have those aims at the forefront of their thinking when assessing worker status.  The SC reminded tribunals that the purpose of legislation that encompasses workers is to protect vulnerable workers. 
• There is no presumption that because written terms are signed by both parties that they represent the true agreement between the parties. Here the SC is reminding tribunals to look behind the written terms and assess from the facts whether those terms represent the true agreement. This is not new law (see Autoclenz) but it bolsters existing dicta and reaffirms the fact that respondents to claims are under a high level of scrutiny if they are relying solely on written terms to defend a worker status claim.
• When considering worker status, tribunals should assess the level and type of subordination that the worker is under. In doing so, the SC requires tribunals to consider the position not only at the relationship’s inception but also during the relationship.  This can be likened to the dicta in Autoclenz relating to bargaining power but again, pushes it further towards claimants. One way in which the SC’s interpretation of subordination can be seen as pushing beyond the references to bargaining power in Autoclenz is by focussing on the concept of control and its importance to determining the level of subordination that a claimant is under.

Tribunal’s interpretation of Uber so far:

It could be argued that tribunals were already doing a lot of things that the SC in Uber is asking them to do. Anyone that has been in tribunals in the last few years arguing around worker status will have a grasp of the fact that (despite it not being the correct legal position) it is respondents that have the burden of proof rather than claimants. In reality, it has been a slow creep to the current position following Autoclenz. What the judgment in Uber does is give tribunals a greater case law foundation and the concept of ‘vulnerable’ workers to grapple with.

From our time in tribunals since Uber we have seen a slight shift (bearing in mind that tribunals were already adopting the Uber approach prior to Uber) further towards a presumption that the written terms do not reflect the true agreement, and the bar being raised further for respondents. What is clear is that tribunals (quite rightly based on the case law) are actively looking for all and any information they can find to discredit the written terms.   With this in mind, the question becomes, what can be done by engagers in response to Uber?

Responding to Uber (pre-claim):

As case law changes so does the work that should be done in order to assess the status of operatives and how this is evidenced. This could be changes to the terms and conditions, changes to the way terms and conditions are agreed and changes to the working practices themselves. The first step should be an assessment and review to determine the current position regarding worker status and following this, a plan put in place to amend working practices and documentation, where possible. It may also mean accepting that some operatives cannot be engaged on terms that mean they are not workers, and other contract options should be considered. For example, many operatives are now engaged on specific worker contracts rather than self-employed or employment contracts.  This should be carefully considered though, to ensure that the employment and tax ramifications are fully understood.

Responding to Uber (in the tribunal):

Taking the above steps will not guarantee that you do not receive claims. Therefore, we must consider how to approach the worker status argument in tribunals when faced with the Uber judgment. See below for some tips following our recent skirmishes:

• Embrace the Uber judgment. From our experience, trying to hide from judgments that, on the face of it, seem to make our job harder is not only impossible to do but also hides from the fact that these judgments often present good arguments as well.  For example, it is clear from the Uber judgment that the SC was very much focussed on the amount of control Uber had and the fact that the drivers were in a vulnerable position. It is our experience though, that in most cases claimants are not ‘vulnerable’ to the same extent that the drivers were in Uber, and this can work as a key point for respondents. Highlighting points of negotiation, freedoms that operatives have and the genuine discretion that exists for them, are all points that show the ‘vulnerability’ of a particular claimant is not the same as in Uber.
• Distinguish from Uber. While the judgment in Uber is binding on lower tribunals, the facts of Uber also need to be borne in mind. One of the arguments that Uber pursued in its defence, was that the drivers didn’t provide services to them and that they did not have a contract with the drivers for the provision of services. Uber argued that their role in the contractual chain was to bring together passengers and drivers and that when they did this the passenger and driver formed a contractual relationship between them and that this was none of Uber’s business. When you consider the facts found by the tribunal in the Uber case, this argument run in defence by Uber seems profoundly flawed. It is this that you should be alerting tribunals to when arguing worker  In most cases there will not be a web of multi-national companies seeking to avoid liability by putting forward arguments that they were not involved in the services when in reality they clearly were.  In most cases the relationship is more straightforward, and respondents do not have the sort of power and leverage that Uber clearly did. Highlighting how your case differs from that of Uber can be a key tool in arguing worker status, especially considering the individual nature of the facts found in Uber.
• New forms of evidence. What the judgment in Uber certainly does is require more from respondents in terms of evidence.  Respondents should not be going to tribunals (with an expectation of successfully defending a claim) if they are relying solely on a contractual clause without any corroborating evidence. To produce this evidence will involve considering (ideally before a tribunal claim is made and our strong recommendation would be to do this during the review – mentioned earlier) the practical realities of contractual clauses being exercised. For example: what would happen practically if an operative sent a substitute? How would it work in practice? Answering these questions and being able to present evidence as to the practical realities all assist in highlighting to tribunals that the contractual terms are genuine and the true agreement. Consider the converse, if a witness at a tribunal cannot adequately explain how substitution would work in practice, how is a tribunal to believe that the right to send a substitute is genuine?

What is on the horizon for worker status?

At present, other than for National Minimum Wage enquiries, litigation surrounding worker status is primarily limited to tribunal claims instigated by individuals. However, with the Government (largely via the labour market inspectorate) increasingly concerned about individuals’ working conditions and rights, a single enforcement body looms large in the future of worker status. We are told it is coming, but not told when. It would be a major development and one that would, subject to proper funding and correctly drawn parameters, serve to protect vulnerable workers more proactively than the judgment in Uber. With this in mind, now is the time to conduct reviews into the status of those you engage and Chartergates can assist you with this. We have developed a review process and a worker status toolkit to assist our clients.

Another potential future development is the changing of the definition of worker status. You will remember the Taylor Report from a few years back. This suggested a new definition of ‘dependent contractor’ largely focused on control and dependence.  This is of course very similar to the considerations in Uber and one that may take legislative form in the future.

What is certain for now, is that worker status is the pre-eminent status argument of our time and one that is likely to increase in importance in the future. It is by no means a foregone conclusion that every operative is a worker or that worker status claims cannot be defended. The key, however, is doing the work necessary to know that those you engage that are not workers are correctly treated as such based on the relevant law.

If you would like assistance in assessing the status of those you engage, please do not hesitate to contact the team at Chartergates.