Working 9 to ?

The now well-versed decision in Aslam and others v Uber BV opened with the line ‘Uber is a modern business phenomenon’. It is not entirely clear whether the tribunal saw Uber as a new phenomenon in the modern business world, or an extraordinary individual company. However, we now know the gig economy modelled by Uber is rapidly changing our ideas of modern business. 

The last few weeks have seen two important considerations of the concept of ‘gig economy’, notably the Taylor Review (the ‘Review’) which was published in mid-July, and the case of Mr C. Gascoine v Addison Lee decided in the employment tribunal in early August. The past year has heralded an increased awareness of both the companies who use gig economy models and the status of workers engaged in the gig economy. Questioning the status of workers in the gig economy have been several cases taken against companies such as Uber, CitySprint and Excel. There has also been a rising awareness about the tax status of many of the companies that form part of the gig economy. Most recently, a claim was issued on the 23^rd of May against Uber London Limited by Jolyon Toby Dennis Maugham QC requesting a VAT invoice from the company.

Technology has enabled both the practical implementation of many of these companies’ strategies and their quick scalable business models. These questions go to the very core of many new technology companies in the sharing and collaborative economy era. The central bone of contention is whether these companies in fact not only provide platforms but also effectively manage the resulting business themselves, or whether they are merely facilitating the introduction of customers through their app or platform.

In the case Mr C. Gascoigne v Addison Lee, a former cycle courier (Gascoigne) argued that he was an employee of Addison Lee. As such, he would be entitled to employment rights not afforded to self-employed independent contractors. Mr Gascoigne’s claim was for payment for one week of holiday that he took in March 2016. Employment judge Joanna Wade held that the working relationship was that of a worker, rather than an independent contractor.

The tribunal was once again focused on the practical reality of the way the company operated, rather than what its stated objectives and contractual agreements characterised the relationship with Mr Gascoigne as. The tribunal noted the role of technology in controlling what work was given to couriers. This work is distributed by means of response to a central controller. The system notably had no ‘decline’ button when a job was offered, and Mr Gascoigne would have to get directly in touch with the controller if he did wish to decline a request. In deciding that Mr Gascoigne was entitled to holiday pay, Joanna Wade noted the wording that Addison Lee used to describe the relationship between its couriers and the company:

‘[n]ot only is this [the wording] confusing and wordy, it is not the way the business ran, or could run, as [Addison Lee] well knew. This is why it employed ‘armies’ of lawyers; to do the best possible job to ensure that the claimant and his colleagues did not have … worker status.’

She went on to note that:

‘This was a working arrangement which did not lend itself to the interpretation which the armies of lawyers tried to promote. The claimant was part of a homogeneous fleet and a homogenous operation which promoted Addison Lee to customers and looked after its own. There is nothing wrong or bad about that, it simply does not fit with the employment status for which the respondent contends.’

Although the tribunal states that there is ‘nothing wrong or bad about that’, there is a notable undertone in this case, in previous decisions and in observations made by commentators that the manner in which companies describe their relationship with their ‘work force’ is evasive and not an accurate description in order to avoid the responsibilities of being an employer. There is weight to this point in some regard, especially in the face of evasive and illusive language. However, over reliance on this point in the wider regulatory context does obscure the pertinent question of whether there is any merit in a more casual approach to the way in which companies in the modern age approach the concept of ‘workforce’.

The decision in Mr C. Gascoigne v Addison Lee comes in the wake of the Taylor Review, which recommends that any self-employed worker under ‘control’ or ‘supervision’ should be considered a ‘dependent contractor’. This status would entitle the worker to the usual benefits associated with being classified as a worker, such as minimum wage entitlements and sick pay. This would, in the view of the report, offer clarity to the three current statuses of employment, namely worker (to be renamed as ‘dependent contractor’), employed and self-employed. Another notable conclusion of the report is that the burden of proof should be on the employer to disprove that a claimed working relationship exists, rather than someone having to prove that it does.

In light of the decision in Mr C. Gascoigne v Addison Lee and the Taylor Review it may appear that the tide has firmly turned in favour of workers caught up in the fast developing collaborative economies of today. However, this simple solution may not offer the long-term answer that many commentators hope for. In the mid-term, zero-hour contracts may replace the current framework for workers and companies will learn to adapt to the criticisms made by the courts by adjusting operational structures with their workers and with their customers in turn. The wider question remains unanswered in the fervour to address the short-term issues raised in respect of workers’ rights: to what extent do we need to re-think the way in which we address modern companies in the age of the collaborative and sharing economies. The answer which is most prevalent is to apply old principles to new technologies. Of course, technology does not fundamentally change the relationships that are examined in these cases and reports. However, technology can, and indeed does in this circumstance, raise a question as to the desirability of old frameworks in light of new ideas.

What is apparent from the stream of recent cases and the recommendations of the Taylor Review is that there is increasingly a demand for a different approach to a work force. The need for an outsourced and flexible workforce which meets demand is increasing. The Taylor Review notes at page 25 the findings of the Chartered Institute of Personnel and Development. It found that of the approximately 1.3 million workers engaged in the gig economy a high proportion, 58%, are permanent employees, engaging in gig economy activity on top of their more ‘traditional’ employment, which could indicate that this type of work is used to top-up income. Therefore, there is a spectrum of workers engaged in this type of works as well as a spectrum of motivators as to why workers engage in this type of work. Although these recent cases are of importance and interest, there is much work remaining in order to address a medium and long-term solution for this issue.

The most pertinent and challenging aspect of addressing the gig economy is, as Taylor set out in the Review, that any changes ‘must be accompanied by a new approach that supports genuine two-way flexibility enabled by digital platforms’. The tension between the view that the gig economy liberates the labour market and the view that it exploits it has yet to be resolved. Only the resolution of this issue will determine what kind of phenomenon the gig economy is.

Rebecca Keating is pupil barrister at 4 Pump Court.