Anthony Korn: Legal Advice Advised on Employment Status

Mon, 03 Aug 2015

As app-based taxi booking service Uber faces legal action over the rights of drivers, an expert in employment law says employers and employees should always seek advice.

Anthony Korn, a Barrister specialising in employment law with No5 Chambers, said: “The right advice about employment status is equally important to employers and those considered to be ‘self-employed’.

“Here is a case that will ultimately rest on the ‘exclusivity’ of the relationship between Uber and its drivers, and the best lawyers in the world can’t alter the reality of that relationship.”

The Uber case involves the GMB union looking to challenge Uber’s claim that its drivers are partners rather than employees or workers.

The union says Uber is breaching its duty on pay, holidays and health and safety, while the firm says making drivers employees would mean losing the flexibility that makes the job appealing.

Mr Korn said: “Uber’s position will be that their drivers are individual entrepreneurs – neither workers nor employees – and therefore have no rights at all.

“Employees enjoy the full range of employment protection; workers enjoy more limited protection but still have some rights. The union will therefore seek to argue that the Uber drivers are either employees or at least workers.

“Many people continue to assume that employment law and workers’ rights are the same, when actually there are distinctions.

“And it is important for employers to assess whether any individuals working for them are deemed to be employees, as this may entitle them to additional rights and protection such as from unfair dismissal legislation.”

To determine whether staff could be deemed to be an ‘employee’, or whether they fall into another category, such as ‘partner’ or ‘worker’ can be a tricky process, which in reality will be assessed on the true relationship between parties - rather than the contractual documentation.

In particular, the following are often looked at to assess whether the individual will be deemed to be an employee:

  • Personal Service – if the individual is required to provide his or her services personally, rather than being able to send a substitute to carry out the work in his or her place, then they are more likely to be classed as an employee;
  • Mutuality of Obligation – if the business is obliged to provide work and the individual is obliged to carry out the work when it is offered, then it is more likely that the individual will be classed as an employee; and
  • Control – If the employer exercises a sufficient degree of control over the manner in which the individual carries out the work, for example, by dictating hours of work, then it is more likely that the individual will be classed as an employee.

If the above are not fulfilled, then the individual may be a ‘worker’ rather than an ‘employee’, which means they would be entitled to less legal protection and rights under employment law.

But if they are fully independent entrepreneurs there is no protection at all beyond the terms of the contracts.

Finally comments Mr Korn: “It is worth noting that whilst workers are not entitled to the same employment law protection as employees, they are still entitled to some basic rights, such as paid statutory holiday and the minimum wage.”

Award winning No5 Chambers is the UK’s premier set of barristers’ chambers with offices in Birmingham, London, Bristol and East Midlands and boasts more than 240 barristers and 28 silks.

Please click here to view Anthony Korn's profile.

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