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AND STATUTORY SICK PAY WHAT’S THE PROBLEM WITH SSP?


As mentioned above, if Uber drivers are ‘workers’ under employment law, they are entitled to annual leave, the national minimum wage and a workplace pension. Even if Uber drivers are ‘workers’ under employment law however, they will not automatically become entitled to Statutory Sick Pay (SSP) from Uber.


Other Uber drivers working at around the same time as the claimants (2016), will no doubt be taking a careful look at their positions.


Although we understand that Uber doesn’t consider that the ruling applies to all current and future staff because of changes made to their business practices, it is an important case with far reaching implications for other workers in ‘self- employed’ roles, where they have little autonomy and derive all or most of their income from the business they work for.


It is important that you seek advice if you are unsure on your employment status and/or believe that your employment rights have been breached. You could try ACAS, an employ- ment law adviser/solicitor (they may offer a free initial consultation) or a trade union, if you belong to one (or want to join one).


WHAT ABOUT TAX? Employment law status is different from tax law status.


Employment law: three types of status – employee, worker and self-employed. Tax law: two types of status – employed and self-employed.


Because employment law and tax law are different, the decision does not change the drivers’ position as ‘self- employed’ for tax purposes. This means the drivers still have to submit annual self-assessment tax returns to tell HMRC about their earnings. They will continue to pay their income tax and National Insurance through self-assessment rather than through the Pay As You Earn system. This is con- fusing enough in itself, and it also has a knock-on effect for entitlement to statutory payments (as we consider below).


HMRC and/or a tax tribunal would have to rule that the drivers are ‘employees’ for there to be a change to their tax position. Arguably, it would take a bigger ‘swing’ to reclassi- fy a driver from self-employed to employed than from self-employed to worker.


APRIL 2021


This is because currently, most Uber drivers are treated as self-employed for tax purposes and so are paid gross. Not being paid under the PAYE system means that there is no secondary contributor (someone who is liable to pay Class 1 secondary National Insurance Contributions). Secondary contributors are responsible for administering and part- financing statutory payments under the Social Security Contributions and Benefits Act 1992. If there is no secondary contributor, then it follows that the worker cannot be enti- tled to Statutory Sick Pay or any other statutory payments for that matter, e.g. Statutory Maternity Pay, etc.


As we explained in our opening, some of the news stories following the case incorrectly concluded that the drivers involved would be entitled to SSP as a result of the decision because they assumed SSP is an employment law right, which as we have explained, is not the case.


Therefore, entitlement to Statutory Sick Pay would require not only a change in the Uber driver’s employment law sta- tus but a change in their tax status as well. In the absence of this, Maternity Allowance or Employment and Support Allowance may be available instead from the Department for Work and Pensions (DWP)


WHY IS IT ALL SO COMPLICATED!?


Good question! These complexities demonstrate the need for a more certain and simpler system – for both individuals and businesses to navigate.


In response to some concerns raised and recommendations made about the employment status regime in the Matthew Taylor ‘Good Work’ Report, the government issued a consul- tation in February 2018 looking at questions around whether to legislate to improve the clarity of the employment status tests and whether to align the employment status regimes for both tax and employment law purposes. LITRG’s response can be found here:


https://bit.ly/3te7QrK


Over three years later, unfortunately – the consultation is still labelled with ‘feedback being analysed’. Sadly it is a case of ‘watch this space.’


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