TAXI LAW...TAXI LAW.. WORKER STATUS: NO TWO CASES ARE THE SAME THE LAY OF THE LAND


Ever since the Supreme Court’s judgment in Uber BV and Others v Aslam and Others [2021] UKSC 5 many stakeholders in the private hire and taxi industry are wondering whether or not they are a worker or whether or not their drivers are workers.


The implications of the answer to this question can be massive. A finding that a driver is a worker rather than being self-employed means that the driver is entitled to a set of rights protected by employment law.


These include, for example:


• the right to the National Minimum Wage under the National Minimum Wage Act 1998


• the right not to have unlawful deductions from their wages under the Employment Rights Act 1996


• the right to paid holiday/annual leave under the Working Time Regulations 1998


• the right to rest breaks depending on the working time under the Working Time Regulations 1998


These rights must be observed by the worker’s employer i.e. the taxi firm/operator and so if a driver is found to be a worker, they can claim losses from the operator for breaching these rights. For example, holiday pay that should have been paid but was not.


Importantly: this applies even if the employer never realised, knew or even thought that the worker was a worker rather than being self-employed.


It is not a defence for an operator, once an individual has been found to be a worker rather than being self-employed, to simply say: “Well now I know this person is a worker, but I didn’t know back then and so I only have to start adhering to their worker rights (such as paying them holiday pay) from today”.


There is a lot of confusion, it’s fair to say, in determining worker status claims. The short and simple answer is that there is no definitive answer because each and every case is different: with different facts, different types of evidence, different qualities of evidence and different


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parties and witnesses. This is the reason why lawyers and advisors cannot simply come up with a grid or a set of questions the answers to which will mean a driver is or is not a worker.


HOW IS THE ISSUE LIKELY TO BE DETERMINED?


An Employment Tribunal will be well aware of the Uber judgment. It will faithfully apply the case law (which also includes other cases such as Autoclenz Limited v. Belcher [2011] 4 All E.R. 745 and the Court of Appeal judgment in Uber [2019] 3 All E.R. 489) to the facts of the particular case with that particular operator and that particular worker.


Although there is a danger that the Employment Tribunal simply slides towards a ‘contrast and compare’ with the Uber judgment(s), instead, it ought to interpret the statutory provisions from all of the circumstances of the case with the agreement formed between the parties being only part of those circumstances.


In assessing a case, a Tribunal will also look at the nature and the quality of the parties’ evidence to enable the circumstances to be established. This is why early advice and the gathering of evidence is important. Like any litigation, the careful collation and presentation of evidence is important, as is case presentation. Tactical decisions have to be made early to lay solid foundations for success or the mitigation/reduction of any potential liability.


WHAT ABOUT V.A.T. AND OTHER TAXES?


Worker status is also related to another area of law – tax. This is equally, if not more, financially important to parties. H.M.R.C. is also likely to be involved.


NOVEMBER 2021


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