Worker status is the holy grail in the gig economy, including the fields of taxi rides, food delivery and courier services. Workers are entitled to certain employment rights such as the national minimum wage and paid holiday, whereas the genuinely self-employed are not. Section 230(3) of the Employment Rights Act 1996 defines a worker as someone who works under a contract of employment or another contract ‘where the individual undertakes to do or perform personally any work…for another party who…is not…a client or customer of…the individual’. Case law has expanded on this definition and looked at issues such as mutuality of obligation, control, integration into the business and personal service.
Various questions have been referred to the Court of Justice of the European Union (ECJ) in the case of B v Yodel. The claimant was a courier who delivered parcels for Yodel. He used his own vehicle and mobile phone. His wore no uniform and carried no Yodel ID. He had a handheld Yodel device from which to receive information from Yodel and for Yodel to track his performance. He was not obliged to do any work and Yodel was not obliged to give him any. His contract said he could work for other companies. The contract also said he could send a substitute to do his work provided the substitute had the same level of skills and qualifications. B never sent a substitute to do the work but others on the same contract had done so. Does this defeat his claim to worker status? His contract says he is self-employed, but is he?
The ECJ is being asked to decide whether the ability to send a substitute will defeat worker status. The referral includes numerous other questions relating to this gritty issue in the hope of finding some clarity. We continue to watch this gig economy space.
If you engage Gig economy workers in your business, or are building a gig economy business, Nick Jones and Cecily Donoghue, solicitors in our specialist employment law team will be able to assist.