Gig Economy: what is the status of a “worker”?

25 June 2020

The European Court of Justice (ECJ) has given some clarity on the above matter in the UK case of B v Yodel, where a Yodel courier(C) claimed that he was a “worker” under the Working Time Regulations (WTR) and thus, amongst other things, entitled to be paid statutory holidays provided for by (WTR)s, despite his contract indicating that he was self-employed and thus not covered by (WTR).

The written contract reflected the status of an independent contractor as (a) C could provide a substitute to carry out the work but subject to Yodel vetting the choice of substitute if they did not have sufficient skill or qualifications (b)there was no mutuality of obligation ie no right to be offered work and C could decline any work that was offered (c) C could work for other couriers, even potential competitors of Yodel (d) C could organise his own working day to suit his business needs and (e) C was personally liable for any acts or omissions of the substitute.

The ECJ reviewed previous case law and reconfirmed the test to be applied for worker status namely there to be on the facts evidence of subordination ie performing services for and under the direction /control of another person in return for remuneration and decided that it was up to national courts to decide employment status in such circumstances but suggested that C appeared to them to be genuinely self-employed person, in particular he appeared to have a "great deal of latitude", where such independence did not appear to be fictitious.

This case does not alter existing UK case law but does confirm that genuine arms-length arrangements with the types of factors as above can defeat claims to worker status.

The Supreme Court is due to hear the Uber case later this year and is likely to provide further guidance on the matter.

The article is intended for general information purposes only and should you have any further queries on the matter, please do not hesitate to contact our HR/legal advice-line team on 01455852028.

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With over 20 years experience in HR, Hema draws her expert specialist knowledge from a broad range of industries, including employment advisory and consultancy services, retail, manufacturing and leisure. Being MCIPD qualified enables her to quickly understand how organisations operate, how to interact with their business leaders and to deliver effective commercial and practical solutions.

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Jill has over 14 years’ experience in HR & Training. Having started a career as a police officer; she changed careers to HR & Training dealing with Equality & Diversity in the workplace. Jill is passionate about Diversity, Inclusion and HR and has supported companies in managing their HR and training needs. She has a wealth of expertise across HR, dealing with challenging casework, company restructure projects, mediation, training, organisational development systems; equality and diversity.

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Jatinder is qualified non-practising Solicitor, he has over 22 years advisory experience in Employment law, HR matters and Employment Tribunal litigation. He manages the legal and HR advice line team ensuring the delivery of advice is effective verbally and in correspondence. He has experience in training and coaching work colleagues in all aspects of legal and employment matters. With his sound understanding of issues arising with in the workplace environment, Jatinder aims to deliver clear and concise client focussed advice.

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Anoop is an experienced HR Advisor and is part of the Telephone Advice Line Team. Anoop has worked in both the public and private sector, providing Employment Law advice ranging from grievances, disciplinaries, performance management, attendance management and mediation. Anoop is a trained mediator and provides down to earth, pragmatic, commercial advice. Outside of work, Anoop actively participates as a CIPD Board Member of East Midlands.

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