Saturday, October 29, 2016

Uber cars and Employment Law

The Employment Judge's decision yesterday that Uber car drivers are workers entitled to basic wages and holidays seems correct though doubtless Uber will appeal all the way to the Supreme Court.
The first instance decision reminds me of one of the last ET cases with which   I was involved before retiring from the legal profession earlier this year.

In that case which began some years previously illustrating how long these arguments can take to resolve, the issue again was whether an individual worker,  there a lady church pastor, was an employee or was self employed.

Unlike Uber drivers the pastor's income which was extremely modest, effectively came from her church. Similar legal arguments to the recent  Uber case then arose about whether she was in fact directed by her principals or whether she was truly self employed.

The  pastor's case was long and fully argued from start to finish although no counsel was involved for the church at the first instance hearing in the Truro ET, which issued a decision that the minister was self employed.

The Truro ET  decision was overturned by the Employment Appeal Tribunal and again rejected by the Court of Appeal by which time learned counsel were involved for all parties so that prior to the case coming before the Supreme Court, the outcome had been the same as in yesterday's Uber decision, save that unlike the Uber ET judge, the first instance ET judge in Truro had  concluded that the minister was self employed.

However both the EAT and Court of Appeal then decided the Church case essentially in a similar fashion to Uber case thus far.

The Supreme Court in the Church minister case then by  majority decision,  restored the Truro ET judge's ruling that  the minister was self employed. A key part of their Lordships decision was that:

The ministry described in the (Church) constitution and standing orders is a vocation, by which candidates submit themselves to the discipline of the Church for life. Absent special arrangements with a minister, a minister's rights and duties arise from their status in the Church's constitution and not from any contract ...

In my view the above  key point in their Lordships' decision is inapplicable to the Uber case. 

In other words unlike the church ministers, Uber drivers are not practising  vocations of a lifetime commitment but are simply clocking in to do a job in ways set out by Uber. 

A generation ago Employment Tribunals might have decided that the Uber drivers were self employed but the Employment Judge's reasoned decision yesterday  the legal  position in C21 is entirely in line with the trend of recent cases and seems unlikely imho to be reversed on appeal.

Interestingly, the trend for many if not most, UK employment law decisions and developments over the past 40 years or so, has been to follow  EU precedents and decisions of the European Court of Justice. 

Will this trend be reversed on Brexit - I wonder?

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