Susan Harris
Prior to her appointment with GMB, Susan was a partner at Thompsons for 28 years, representing union members in employment... Read more »
GMB are celebrating a long-awaited win on behalf of Uber drivers, who are now confirmed to be eligible for basic employment rights.
It’s been more than five years since GMB commenced proceedings in the Employment Tribunal against Uber on behalf of its driver members.
GMB sought to establish that its members were workers and thus entitled to rights derived from the National Minimum Wage Regulations, protection from detriment derived from the Employment Rights Act 1996 and to not only take holiday but to be paid whilst taking that holiday.
Uber’s defence to that claim was that the contractual document signed by the drivers showed that they agreed they were self-employed and thus not entitled to these rights.
In October 2016, the Employment Tribunal concluded that drivers were workers and entitled to the legal protections claimed for. The ET judgement included the following condemnation of Uber’s practices:
“The notion that Uber in London is a mosaic of 30,000 small businesses linked by a common ‘platform’ is to our minds faintly ridiculous.”
And referred to Ubers argument that drivers are “self-employed” as based on “fictions, twisted language and even brand-new terminology“.
Despite this judgement, Uber appealed to the Employment Appeal Tribunal. They lost there too.
And so, they appealed to the Court of Appeal, where once again they lost – and the judges upheld the original decision that our members are workers.
Throughout the process, GMB has urged Uber to sit down and talk about the way forward, so that we could bring these rights to our members more quickly than waiting for the legal process to conclude and because spending money on lawyers has never been what unions want to do
Throughout the process, GMB has urged Uber to sit down and talk about the way forward, so that we could bring these rights to our members more quickly than waiting for the legal process to conclude and because spending money on lawyers has never been what unions want to do – we want to protect our members and win for them in the workplace.
Last month the Supreme Court gave the final judgment on the issue of worker status. Uber lost. Again.
In the lead judgment, Lord Legget set out exactly why in this relationship Uber was in control, the effect of which was to make the company’s argument that our members were self-employed simply untenable.
So GMB has established worker status for its members, and now we go on with the legal battle to obtain compensation for our members who have been denied the rights that being a worker should bring.
But more than that, the judgment is a compelling exposé of how big business may attempt to word contracts to create the fiction of self-employment. And that, when they do so – if they are not challenged – the protections enshrined in law are undermined.
That the judgment is a must read for anyone interested in this area is a given, but particularly – if you need to skip everything else (though I wouldn’t because it’s a compelling judgment) – read paragraphs 68- 88.
At paragraph 85 Lord Legget sets out that there is no legal presumption that what is in the contract is determinative of the parties’ actual legal status – so, just because a contract says someone is self-employed, it doesn’t mean that they are! He sets out that what needs to be considered when looking at the issue of actual status are all the relevant circumstances and the reality of the relationship:
“any terms which purport to classify the parties’ legal relationship or to exclude or limit statutory protections by preventing the contract from being interpreted as a contract of employment or other workers’ contract are of no effect and must be disregarded”
The judgment is a compelling exposé of how big business may attempt to word contracts to create the fiction of self-employment
So why is this so important? Surely, as Uber are now attempting to argue, this only applies to the 80-odd people involved in the original claim?
Well, the judgment is ground-breaking. The read across from this judgment should make every gig economy company sit up and think about what the status of the people they classify as self-employed really is – they should be thinking about the people they provided contractual documents to which told them they were self-employed and thus had no rights to paid holiday, no rights to the national minimum wage or protection from detriment.
It is obvious that business has the upper hand in the negotiations when someone is looking for work: workers need to earn to pay their rent, put food on the table and to survive. But what this judgment reminds us is that the law is prepared to intervene in that process; that the law courts are there to hold business to account; that the law demands that businesses correctly label the working relationship and won’t allow them to hide behind words in a contract to deny workers their rights.
This judgment also reminds us that unions are a force for good. Membership of a trade union means that someone will fight your corner, even if that means using lawyers to pursue an issue because a company won’t sit down with us and negotiate; even if that means taking the fight to the highest court in the land to defend our victories and our rights. That’s what we did with Uber, and we won.
Prior to her appointment with GMB, Susan was a partner at Thompsons for 28 years, representing union members in employment... Read more »
Judicial Backpedalling on Trade Union Rights in the Gig Economy: