Hello and welcome to our bumper newsletter to take you in to the Bank Holiday weekend.
First up is the Uber case. The Supreme Court rejected Uber’s appeal and held all Uber’s drivers were workers.
Workers have fewer employment rights than employees but are still entitled to:
The National Minimum Wage.
All the rights under the Working Time Regulations.
Protection from victimisation for whistleblowing.
Protection from discrimination under the Equality Act.
The Supreme Court in their judgment reviewed the law on worker status. The thrust of the Supreme Court’s judgment is that employment law is there to protect workers particularly where there is an inequality of bargaining position. The language of the statute should be interpreted to give effect to that purpose, protection of vulnerable workers. Employers should not be able to defeat that purpose by hiring expensive lawyers to draft fancy contracts.
Lord Leggatt in the leading judgment went further than previous caselaw in stating that the written contract should not be the starting point for determining the contractual relationship and worker status as that would give Uber the power to determine how the driver is classified. The starting point should be an examination of how the contract works in practice.
Here Uber’s control freak culture counted against it. Control being a yardstick as to whether someone is self-employed or not. The greater the autonomy in how the work is done the less likely worker status will be found. Here Uber dictated the pay rates, dictated the terms once a driver is logged on to the app, exercised control over a driver who rejects a fare, and restricts communication between driver and customer. Such a level of control enjoyed by Uber over their drivers made a finding of worker status inevitable. The driver was not genuinely self-employed but was Uber’s worker.
The driver was entitled to national minimum wage from the moment the driver logged on to the app.
This is an important case. Employers need to be wary about drafting complex legal documents designed to avoid worker status. The contract should reflect how the contract will be performed. If the employer exercises significant control over how the work is done then a finding of worker status is a very real possibility.
An injunction is a discretionary remedy. In employment law an injunction is often obtained by employers to stop employees or ex-employees from doing something, usually joining the competition in breach of a restrictive covenant. The injunction is granted pending the full hearing of the triable issue. The full hearing will determine whether there has been a breach and if so the level of loss and consequent damages caused by the breach.
In Avsar v Wilson James Limited Mr Avsar, a trade union representative and an employee sought an injunction to lift a disciplinary suspension which he alleged was because of his trade union activities.
In determining whether to grant an injunction the court applied the three part test in the American Cynamid case:
Is there a serious triable issue?
Did the balance of convenience favour an injunction?
Were damages an adequate remedy?
The court declined to order an injunction as although there was a serious triable issue and the balance of convenience favoured an injunction, damages were an adequate remedy. The court noted that suspension caused no financial loss and was a neutral action, the court also noted that Mr Avsar had two routes for obtaining damages, one in the County Court and one in the Employment Tribunal. My first boss, later an employment judge, always said the first question about any case should be “what’s it worth?” and if the answer is not much then don’t pursue it. Here suspension was costing the employee nothing as he was still being paid, therefore an injunction was worth nothing to him as he had no losses.
Mr Gibson owner of Middlesbrough FC made his chauffeur “redundant” after the chauffeur had referred to Mr Gibson’s wife as “fucking nuts”. Mr Gibson then hired another chauffeur. The Employment Tribunal found the dismissal unfair. Moral of the story don’t dress a conduct issue up as a redundancy that sort of cross dressing you can’t get away with.
PJH Law news
PJH Law has taken on a trainee solicitor, Alex McCormack. Alex is local, he attended Bourne Grammar School, followed by Manchester University. He took his GDL in London and is currently studying for his SQE. Alex joined us in August last year and writes these newsletters, Case of the Week, as well as assisting the team in their Employment Tribunal caseload. Alex will qualify in August 2022 and fingers crossed he will decide to stay on with us rather than head south to the bright lights of London.
Dylan is back in the office on some days – those in need of some dog therapy, please pop in and see us as Dylan loves his tummy being rubbed.
He is also in charge of looking after all office dog employment rights, which is particularly useful after the surge of dogs in offices after lockdown.