Leading City solicitor considers merits of Uber case

Andrew Firman, a Partner at leading City law firm, Carter Lemon Camerons LLP has said that the case currently being heard by an Employment Tribunal in London concerning the employment status of Uber drivers, goes to the route of the question of flexibility versus control in drivers’ working arrangements.

The case before the Employment Tribunal has been brought by two Uber drivers who say they are being unlawfully denied holiday and sick pay. They argue they should be considered employees, while Uber says they are self-employed.

Uber drivers currently do not receive holiday and sick pay because they are considered to be self-employed and so not entitled to the rights enjoyed by employees.

Andrew Firman said: “Uber’s point is that it has a bank of drivers available to it, who it can call on to provide the services but ultimately those drivers have the flexibility to say they are available for work, or not: the driver is in control.

“That’s an essential flag for self-employed status, one of the most significant effects of which is determining who is responsible for paying the tax on earnings in the relationship.”

He added that the GMB union, which is backing the drivers, has acknowledged that there is a degree of flexibility but alleges that Uber exerts a high degree of control and this is indicative of an employment type relationship.

He said: “The broader context is the extent to which there is a growing erosion of employment rights: we have had the use of zero hours contracts debacle and now, against the background of increasing competition in the taxi and minicab market, there is the suggestion that regular workers are being denied the key protections which employees have.”

The details in contracts, he said, are not the only relevant consideration for the Tribunal, adding: “The case is going to turn on its facts. What has been committed to writing between the parties is part of it, but also what happens in practice. It is interesting that the drivers are sufficiently homogenised as a body such as to enjoy the support of a union.”

“The claim may be misconstrued but it equally could end up as part of the body of case law which has evolved over many years and seeks to interpret what the traditional master and servant relationship means in the 21st century workplace.”

He suggested that there was an inherent tension between flexibility and workplace rights, saying: “Ultimately, this is about drivers having their cake and eating it: true flexibility comes at the price of depressed rights. It is not wrong however, that the particular flag given to any work relationship should be tested so that reality of what happens on the ground cannot be masked by the starting label.”