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PRACTICE (SURVIVING UBER)


The judgement in truth teaches us that ‘superficial’ changes to contract terms are simply not sufficient when deciding to treat people as self-employed.


Many issues were touched on, such as what and where is ‘work’? In this context, does an app driver’s travel, engaged and unengaged (passenger or no passenger), add up to their total working hours? And how do their earnings show per hour pro rata?


You would think that a purely self-employed driver does not actually start earning until his punter is in the back.


There were also some grey areas regarding app drivers accepting work from multiple apps and whether that affects their worker status during the waiting time.


However, in the end, the judgement amounts to the three things for those 26 app drivers we’ve outlined already: • holiday pay • pension contributions • National Living Wage


Uber may not even bear the brunt of added costs, which are likely to be passed on to the customers. When New York City’s minimum wage law came into effect in 2019, Uber simply raised its prices in the city to remain profitable.


WHAT DOES IT ACTUALLY MEAN TO YOU?


Let us look at what this actually means to you today. Work- ers Rights as per ‘The Taylor Report’ will be a critical part of our future. We just don’t know quite how yet?


If you have already taken the time to bring in a suitable professional and addressed the engagement of your self- employed workforce, taken into consideration your working practices, and the importance of those practices being properly reflected in a written contract, that contract is as relevant as it was before the Uber judgement.


Many of the points picked up by the judgement are usually already in the sights of status professionals like us. It has been observed that Uber’s contract was not the traditional Contract for Services that many of you have or should have, with your subbies. Meaning the Supreme Court judges actually made their decision based on the specifics of the Uber arrangement.


We know that all cases which might come before tribunals, will need to be forensically examined based on the specifics of their own contracts and working practices. Even after Uber’s announcement, we still don’t have a definitive legal answer as to what constitutes working hours to allow us to set a minimum wage in this case. A tribunal does not create law, just something to be ‘considered’ for the next tribunal.


MAY 2021


However, I have no doubt many more drivers will seek to go to tribunals, which will possibly lay the groundwork in the future for a sea change in sub-contractor to main contractor relationships. That is however a little way off, a closer issue will probably be copycat tribunals brought by sub- contractors motivated to ‘try their luck’.


What they had were complicated and unclear working practices hidden behind lots of tech talk and weighty legalese. The point is nothing has really changed advice- wise. I have always said that a standard templated contract which does not reflect reality, will not protect businesses from employment status and worker status claims.


Your contract terms, media, contractor handbooks or training manuals for subcontractors as well as your day-to-day working practices must be considered as a whole to establish whether your subcontractors can legitimately be seen as self-employed.


The Supreme Court decision does not give all drivers protections and guaranteed work or money, or the right to sick pay, or the right to be ceased without due process. Uber was bought to task for not offering its workforce what the court decided were basic rights. We need as a trade to continue to seek to attract and retain drivers, by good practice. And we still have the chance to do that.


ADDISON LEE


I should also mention that as we come to press Addison Lee has had its application to appeal against the rulings of the employment tribunal and the Employment Appeal Tribunal dismissed, with Lord Justice Bean stating that it is unlikely to succeed following the recent Uber BV vs Aslam and Others judgment. This is more worrying because AddLee are a ‘traditional’ private hire style company, but the case still hinged on the use of an app.


In order to follow suit, drivers for AddLee will have to pursue their own claims but are being heavily courted by solicitors happy to oblige. This potential chaos was brought to you by; governments that have not addressed the massive digitisa- tion of the hire and reward trade and won’t make clear laws that recognise new ways of working.


Watch this space…... Gary Jacobs


Director of Eaziserv, a compliance and status consultancy specialising in ground transport. www.eaziserv.co.uk


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