Employment status in the ‘gig economy’ - Introduction

Hello and welcome to this Webinar on the gig economy. The title is employment status in the gig economy. On this is Part One, the introduction to this Siri's I'm Ben, um, Anwar on Dime, a barrister at the 36 Group in London. I specialize in commercial on public law, and I have a practice in employment law within that. So the learning objectives in this introduction to the Siris on the gig economy is as follows. First of all, what we're going to do is we're going to have a look at the statutes that underpin some of the very recent disputes focusing on the gig economy in the employment tribunal and beyond it Andi also part of this webinar what I want you to take away by the end is an understanding of some of the key issues really that are playing out in litigation in this complex on d really rather difficult area in order to achieve those objectives. Then the first thing that I want to do is to you give you a a broad overview off the landscape. First of all, what is the gig economy? So the gig economy then is a bit of a buzzword or buzz phrase, but it's really a new label for something that has been around for a very long time. On that is essentially businesses need for casual labour. It's particularly used to describe the situation when businesses require a large pool or flexible labor that can come into their operations or interact with their business, actual notice and on a casual basis. So what we tend to see in situations like this is that a person brings a claim to the employment tribunal seeking to assert their rights, for instance, the right to a minimum wage or the right to holiday pay or, for instance, the right but to let's say, protection from unlawful deductions from wages or even discrimination. And what happens when the employer receives it or the business receives that plane, They come back with a defense along the lines off. Hang on a second. You're not entitled to those rights because you're not a worker. At this point, the claimant normally is a bit puzzled because assed faras, they're aware they are working for the business. They're part of the business. While they're working, why can't they have those employment rights that other employees and other workers enjoy well, what the businesses have bean trying to say, and not with very much success recently is that the people that are a part of their business operations are in fact self employed, that there's no relationship off employer and worker. Rather, what there is is a setting created by the business for self employed individuals to come in, ply their trade and then when they finished to leave. And there's no entitlement for those individuals for basic employment rights. Now, this argument hasn't won much sympathy recently in the Employment Tribunal, and we're going to be looking in this Siri's at why that is. But let me just point out that although this has particularly become associated with companies like Uber Deliveroo and so on, essentially new technology based companies that have this need for casual labour and large pools off it, this isn't something that's restricted to those sectors by any means. In fact, the gig economy against being around for a long time. I'm going to be taking you through case law that concerns golf caddies, concerns private hire drivers. It concerns lap dancers. It concerns all different types off sectors of the economy, essentially, wherever a business is seeking to minimize its potential liability or potential obligations within employment law. One tends to find this label of self employment creeping in on these types of relationships forms, whether it's on a consultancy basis or contracted basis, or in some of these examples, which would bean talking about where it's, for instance, drivers or persons delivering things from A to B. What's important to point out is that judges are increasingly looking beyond the contract where employers of the business presents to the tribunal and says, Hang on a second look at the small print off this very large, very long documents that we got the purported worker to sign. Judges aren't being convinced effectively that these terms are the strict parameters and reflect the reality off the working arrangements in place. So you're going to be hearing about skeptical judges who have examined with great care at all of the evidence of the circumstances, the arrangement in place, no limiting their analysis to what the lawyers have had to say in the actual contractual terms and conditions. So there's a healthy degree of skepticism from the judiciary about the extent to which the gig economy has actually reflected the economic reality off employment arrangements. So as you can probably gather by now, this is a complex area. It's an area where the courts and tribunals are looking at a very wide range of factors. There's no one single decisive point that tends to prove that someone is a worker or that someone is actually self employed business on in their own right. And for that reason, they could be evidentially complex on they can be legally complex as well as as judges of different levels teas through the various evidential questions, the facts of the case and apply the statutes. And it's the statutes, really, which have to be our jumping off point for understanding what the key issues at the key legal issues in recent litigation and again economy are. So you might remember from being at law school all that time ago. Lots of discussion in contract law about difference between a contract, four services and a contract off service is that probably rings a few distant bells or maybe some awesome recent bills. If you've bean litigating in this area and there was lots of overlap between that body of case law and those sort of multi factorial discussions on the key issues in the economy. You see, the main disputes in recent cases have bean about whether or not a person that is a worker under section 230 off the Employees Implement Rights Act 1996 in particular to 30 subsection three B uh, and also under regulation to one off the working time regulations off 1998. Another key question also relates to a similar or connected provisioning. The Equality Act 2010 on That's at section 83 subsection two A off the Equality Act, which defines the circumstances off employment. What constitutes employment for the purposes off the Equality Act, so that all sounds rather dry. But these definitions make a massive practical difference to the rights that were that person gets or doesn't get so. If a person can show that they are a worker, then they may be be entitled to a minimum wage holiday. Pay sick pay on other rights in addition to that, and further if they can establish that they are in employment. So a relationship of employment they can claim protection from discrimination. If they can't bring themselves within these definitions, they don't get those rights. So these questions of statutory interpretation are playing themselves out on a large scale for very important reasons, because essentially, this is about a dispute over fundamental and basic rights off employment. So we're going to turn first to the Employment Rights Act of 1996. Andi Section 230 reads as follows. It's quite a lot statute, but I'll try toe width through it with a focus on the key provisions. You should have the full text in your reference sheet, it says. In this act, employees means an individual who has entered into or works under brackets or where the employment has ceased worked under close brackets. A contract of employment subsection two. In this act, contract of employment means a contract off service or apprenticeship, whether express or implied in brackets, if it is export and if it is expressed, close brackets, whether Orel or in writing subsection three. In this act, worker open brackets, except in phrases shop worker on betting worker close brackets means an individual who has entered into or works under or where the employment has ceased worked under a contract of employment or be. And this is the crucial part. Any other contract, whether express or implied on if it is, express where the aural or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not, by virtue of the contract that off a client or customer off any profession or business undertaking carried on by the individual on any reference to a workers contract shall be construed accordingly. I pause there to note that that definition in limb be fairly chunky as it is has given rise to an awful lot off litigation, and we'll explore why that is in a moment, Subsection Four says. In this act, employer in relation to an employee or worker means the person by whom the employer, the employee or worker is or where the employment ceased. WAAS employed subjects for five in this act five A. In relation to an employee employment means, except for the purposes section, once have one employment under a contract of employment and be in relation to a worker means employment under his contract and employed shall be construed accordingly. So the long definition in 2 33 b is what is now referred to as a limb. Be worker. So when you hear me talking about limb B workers, that's the definition, which I'm referring to. Also relevant is Section 43 k off the Employee Rights Act in 1996 and what this section does is it extends the definition off a worker. So it contains very circumstances in which the definition of the worker is extended under the protection from from victimization for whistleblowers provision so effectively person to a claiming to be victimized as whistle blowers have a wider category off the definition of workers applied to thumb. And so, for instance, it it covers persons who, for instance, work where they're introduced or supplied to do that work by 1/3 party under various terms. Well, where they've contracted with a person for the person purposes of that person's business to do work in a place not under the control of management. Off that person, Andi again refers back to section 2 33 b, so it builds on the limb be worker definition, but it only applies to workers who are claiming victimization for whistleblowing. Next. The working time regulations 1998 Regulation to one effectively mirrors the definition that is found in section 2 33 B. The limb be worker definition in the Employments Rights Act 1996 So I won't be reading all of that out again. You'll be glad to hear a working time regulations do is that it adds a different heading. The heading of interpretation. Andi. The also relevant here is the Employment in the Equality Act 2010 Sorry, which contains a definition at section 83 off employment and again, the definition of employment is also covered under Section 2 30 off the Employment Rights Act. Section 83 reads as follows. One This section applies for the purposes of this part to employment means a employment under a contract off employment, a contract of apprenticeship or a contract personally to do work so again entirely overlaps with the definition in 2 35 A and be moving on to the National Minimum Wage Act 1998. On Under that act, a similar definition is deployed for both worker the worker definition. Andi the definition off a contract off employment. So those are both the same as in being Point Rights Act 1996 in the working time Regulations 98. Andi, The Employees of the Equality Act 2010. The only difference note is that the wording off the definition off contracts of employment under the national minimum Wage Act 98 read slightly differently. So it's worth just referring to that Section 50 four. The meaning off worker, an employee, etcetera. That's the heading 54 2 reads in this act. Contract of employment means a contract off service or apprenticeship, whether express or implied. And if it is expressed, whether Orel or in writing. So it would appear that the reference to a contract off service there implies within it a contract of which requires personal service on, therefore would appear to overlap with or mirror the effects off the Equality Act 2010 definition in section 83 so in summary, then, when we are considering issues about whether a person qualifies as a limb, be worker. What we can see is that the definition off a limb be worker is to prompt, or there are two elements that must be considered the first element is whether the person is required to do the work personally. And running throughout this webinar a theme that you may have picked up on already is this idea that these definitions of worker and also of employment really work require a on obligation on that person to do the work. Personally, it sounds like an obvious point. If you're in an arrangement that you're claiming is an arrangement off being a worker, an employer, it stands to reason that you would have to do the work, however, as we'll see in some of the subsequent cases on the contracts considered in them. It's not always that straightforward, because you could have rights off substitution the right to get the work done by somebody else under your supervision, or to swap rolls around, uh, to some extent, or with some approval and oversight from the business in charge of the situation. But there has to be in order to be a worker, a sufficiently personal obligation to do the work in the second element off the limb be worker definition is that it contains an exception for where a person is actually a self employed business plying their trade and serving a customer. So where the real relationship is, in fact, that off a self employed small business which is dealing with a client rather than a worker who is dealing with an employer than in those situations, the person won't be a worker. And again, we'll go into this in much more detail in some discussion of the case law on next. But when considering and this is another overarching point when considering whether an arrangement that you're looking at constitutes employment for the purposes of. For instance, the Equality Act 2010 Section 83 what you're looking for is that contract for personal services that the individual is normally required to do, the work subject to considerations about substitution, which are really rather not in complicated on which we're going to come to in the next. Webinar. Thank you so much for listening. Thanks for your attention. I hope this is being useful. Enjoy the questions in the evaluation sheet in your own time, and I hope to see what the next webinar, which will be looking at the first in a line off major cases that have been shaking up the law in the area off defining what is or who is and who isn't a worker. Thank you. Take care