By Andrew Knorpel, Partner in the Employment team
Just before Xmas last year, the Court of Appeal (by a majority) rejected Uber’s appeal against previous judgments of the employment tribunal and EAT that its drivers were workers. The Court once again accepted the drivers’ argument that the written contractual terms did not reflect the reality of the day-to-day arrangements and could therefore be ignored. However, Uber has been given permission to appeal to the Supreme Court and it is interesting to note that one of the members of the Court would have found in Uber’s favour.
Since then, a French court has found that Uber had a “work contract” with a former driver because the driver relied upon Uber to provide them with work. I understand that Uber is also appealing that judgment.
Already this year, the professional cyclist Jess Varnish has lost her employment tribunal claim against British Cycling and UK Sport. She had alleged that the way in which she was funded through a grant and was subject to “extreme control” by coaches meant that she was employed by (or otherwise a worker of) either organisation. The tribunal found that this was not the case and therefore her claims for wrongful dismissal, whistleblowing and sex discrimination could not proceed.
In another employment status judgment this year, the EAT held that a live-in carer was an employee even though she had been paid gross for her three-year long engagement by the service user’s nephew, accounting personally for tax and national insurance. In Chatfeild-Roberts v Phillips & Universal Aunts Limited, the Respondents had argued, amongst other things, that the ability of the carer to be substituted for another individual meant that she could not be an employee.
However, the employment tribunal and EAT found that she had only been substituted on her ordinary non-working days, while she was on jury service and when she was on annual leave (for which she was paid). In these cases, the substitute carer had been organised and provided by the employment agency who had introduced her to the service user’s family. When taken with other findings that there was sufficient mutuality of obligation between the parties and that the service user’s nephew exercised sufficient control over the carer, it was open to the tribunal to have found that the carer was employed by the service user’s nephew.
Further cases dealing with employment status are likely to continue through 2019. We are also still waiting to hear from the Government how they intend to respond their recent employment status consultation, perhaps by clarifying the employment status tests under employment and tax law.
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