Wednesday, November 24th, 2021
At a glance:
Recent research by the Trade Union Congress suggests that the ‘gig economy’ workforce has tripled in the last five years, with 4.4 million people in England and Wales working for gig economy platforms at least once a week. This amounts to 14.7% of working adults, which is an increase from 5.8% in 2016.
In light of the increasing size of the ‘gig economy’ as part of the UK job market, Senior Associate James Collier takes a look at the position of ‘worker status’ 9 months on from the landmark Supreme Court Ruling in favour of Uber drivers.
9 months on
Since the Supreme Court restated the importance of applying the statutory test for worker status in the Uber drivers’ case – click here – a range of workers have asserted their employment rights and made Tribunal claims for unpaid statutory paid leave and other unpaid contractual amounts, such as a claim for unpaid wages, notice pay or claims under the National Minimum Wage Act 1998, as amended.
In the Uber case, the Uber drivers were found to be workers and were owed amounts in paid leave and other contractual amounts. The Uber case shows us that it does not matter that the contract of employment and/or contract for service says that the individual is engaged on a self-employed basis and may state that they are not eligible for statutory paid leave or notice pay. If the individual is employed under a contract to provide individual service then it is very likely that, applying the statutory test for a Worker, the individual would be found by the Tribunal to be a Worker – despite the express clauses in their contract – and so entitled to paid leave and any other contractual amounts that might be owed.
Implications for other industries
The Uber case has helped workers in other industries to assert their worker status – such as delivery drivers and courier riders – and so help those workers to make Tribunal claims for statutory paid leave and contractual amounts.
A Worker who has been denied the right by their employer to take their statutory minimum paid leave entitlement may be entitled to make a claim for their previous year’s quota of paid leave that was refused and so untaken; this claim would depend on the evidence of the employer’s denial or refusal of the Worker’s right to take that leave.
It is important to note that establishing Worker status – rather than as specified in the contract, a self-employed contractor – is important in establishing the right to bring Tribunal claims for:
- discrimination in the workplace, on the basis of a protected characteristic;
- whistleblower protection from detrimental treatment at work for making a protected disclosure; and
- protection from detrimental treatment by the employer for taking appropriate steps to avoid serious or imminent danger in the workplace, or for being absent from work due to serious or imminent danger at the workplace.
How can we help?
It is not always easy to navigate the language found in contracts of employment or contracts for service (as a self-employed agreement is sometimes called), so if you are in any doubt if you are a Worker and entitled to statutory paid leave and possibly other contractual amounts, please give us a call and we can discuss your individual circumstances with you.
We can advise you on how to assert your worker status to your employer, and how to take steps to claim the amounts that are owed to you in the Employment Tribunal. We can also advise you if you think you have been discriminated against because of a protected characteristic, or treated badly by your employer because you had made a whistleblowing disclosure or taken steps to avoid a health and safety concern.
It is important to bear in mind that Tribunal claims for unlawful deductions from wages (relating to paid leave or contract amounts) and claims for discrimination and detrimental treatment must be notified to ACAS by the notional Tribunal claim submission deadline date, which is 3 months less one day, for the date of the unlawful deduction, or the date of the discrimination or detrimental treatment complained of.
When these sorts of claims are put to the employer there is sometimes an agreement that the employer will pay the amounts owed in exchange for the employee’s agreement to a settlement agreement, a special type of contract that provides that any claims against the employer are waived and settled by the employee. For such an agreement to be valid, the Worker must have received independent legal advice on the terms of the settlement agreement.
If you require employment advice or assistance, please do not hesitate to contact Hanne & Co’s Employment Law Department on 020 7228 0017.
Contact the author:
James Collier, Senior Associate