a. New or Expected Developments
Much has been written recently about the so-called “gig economy”(also known as the sharing or platform economy). As of the start of 2017, a number of official inquiries are underway looking into the implications of the gig economy. Starting in October 2016, the Business, Energy and Industrial Strategy (BEIS) Committee launched an inquiry into the future of the world at work, focusing on the rapidly changing nature of work, the status and rights of agency workers, the self-employed, and those working in the gig economy.2 In November 2016 BEIS launched the Independent Review of Employment Practices in the Modern Economy, to be led by Matthew Taylor. The review will consider the impli-cations of new models of working on the rights and responsibilities of workers, as well as on employer freedoms and obligations. The review is expected to last six months and will report in summer 2017 and the outcome will inform the government’s industrial strategy. Further inquiries, both launched in December 2016, include the inquiry by the Work and Pensions Committee into the implications on the welfare system including sta-te pensions, and the inquiry into the tax issues of the gig economy by the Office of Tax Simplification.
Preceding these inquiries was an inquiry into the working practices at Sports Direct and the BEIS Committee’s inquiry on the Digital Economy, which recommended that workers using the platforms have reasonable employment conditions and are not vulnerable to exploitation. Also relevant are the recent news stories and cases concerning the status of individuals working for Uber, Citysprint and Deliveroo. News stories about exploitation of workers, including failure to pay the national minimum wage, failure to give adequate work breaks, poor working conditions, and generally lack of job security, have raised questions about employment status and lack of worker rights.
This is not the first time that employment status has been considered by the UK govern-ment. In 2014, the coalition government launched a review to improve clarity and status of the British workforce. Spurred by the disquiet over exploitation of zero hours and agency workers, the Government sought a better understanding of the issues in order to consider a potential extension of employment rights to certain groups of workers, and great clarity and transparency in employment law so that there is less confusion about what rights an individual is entitled to. After a change of government in 2015, the review made no further progress.
The Advisory, Conciliation and Arbitration Service (ACAS) will be looking at gig work in more depth in 2017 and is expected to issue further guidance around the many different types of employment status and accompanying workplace rights later in 2017.
b. Recent Amendments to the Law
As mentioned earlier, in 2016 and early 2017 there have been a number of claims by individuals employed in the “gig economy” such as drivers who work for Uber, and couriers working for Deliveroo and Citysprint. The highly publicised preliminary hearing in the case of Mr Y Aslam, Mr J Farrar and Others v Uber (2015) made the headlines when
the tribunal held that the claimants, who were drivers that contracted with Uber, were ‘workers.’ Soon after that decision, the Court of Appeal3 decided that a so-called self-em-ployed plumber working exclusively for Pimlico Plumbers for nearly six years was also a worker and so was entitled to basic workers’ rights, despite being self-employed for income tax purposes (and was VAT registered).
The reasoning in these decisions highlight the current approach in deciding employment status; making it clear that the reality of the arrangements between the business, the individual and the customer will be closely scrutinised, and contracts will be disregarded if these do not reflect the reality of the arrangements. As already stated, the tribunal’s decision in the Uber case is not binding on other tribunals but in 2017 it is being appealed to the EAT. It is likely that the Pimlico plumber case will be appealed to the Supreme Court. Employers and employment lawyers will be watching this, and other “gig-economy” worker status cases with interest.