One of the key themes for employment law in 2016 has been the rise of the “gig” economy and the challenges that it throws up in terms of employment status for those working within this economy. What is meant by the “gig” economy can often depend on the context that it is being referred to in. However, I think Will Hutton’s succinct description as something “…in which a working week is no more than a series of “gigs” contracted out by online dispensers of on-demand work” is a good starting point.

There are of course those working within the gig economy who benefit from the flexibility that this new form of work provides with students, older workers and those with childcare responsibilities often benefiting from the flexibility that on-demand work can provide. I think it is also fair to say that we, as consumers, have also benefited from the flexibility and convenience of this gig economy However, it is also clear that there are workers whose experience of the gig economy is not as positive. Part of that experience has been caused by the fact that many working these “gigs” are regarded for employment law purposes as self-employed and as such basic employment rights that workers and employees enjoy such as holiday pay, sick pay and the right to the national minimum wage including the recently introduced National Living Wage don’t apply.

These issues have been underlined by a series of high profile legal challenges and news reports in 2016, including:

• The employment tribunal claim by 19 Uber drivers challenging their self-employed status and arguing that they should be treated as workers for employment law purposes. The outcome of these tests cases is still awaited but the fact that Uber has over 30,000 drivers in the London alone shows the impact that could result from a ruling in favour of the drivers;
• The criticism that Deliveroo has faced for including within its contracts for their self-employed delivery cyclists terms which seeks to limit their ability to challenge their self-employed status at an employment tribunal;
• The cycle couriers bringing claims against Excel, City Sprint, Addison Lee and eCourier arguing, like the Uber drivers, they are not self- employed;
• The continued criticism of Sports Direct over their use of zero hours contracts and its decision to change its approach in relation to their use;
• News reports that some self-employed Hermes couriers are being paid at rates below the national minimum wage.

In my experience one of the key issues is that traditional concepts of what it takes to have worker or employee status are not necessarily easy concepts to translate to those working in the gig economy. A key issue for employee/worker status is the degree to which it can be argued that an individual is working on their own account. That is often less than clear cut and very much fact dependent.

Some clarity could be provided by the Prime Minister’s recently announced review of employment law which will look at protecting workers rights under these changing business models. Matthew Taylor, who has been chosen to lead the review commented that “we need to approach this issue with an open mind recognising that within our flexible system of employment the same type of contact can have a diverse range of impacts on the people who use them.” Whilst this does acknowledge the benefits of this form of flexible working it also looks like a recognition that those traditional legal definitions of who is an employee or a worker may well be extended in the future. We will no doubt hear more about the review in the coming months and in the meantime, I know that many are awaiting the outcome of the Uber case with real interest.

If you have any queries over the employment status of the workforce in your organisation then do get in contact with me – matt.jenkin@moorcrofts.com or 01628 470011