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Uber decision holds key to workers’ rights

Employer's degree of control over workers signals employee status, say experts

27 July 2016

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The legality of a clause banning Deliveroo couriers from taking the firm to court over workers' rights could depend on the outcome of a similar case involving Uber, a lawyer has argued.

Couriers at the restaurant delivery firm and drivers at the App-based taxi company are both classed as self-employed.

According to the Guardian, a clause inserted into a Deliveroo courier's contract prevents a challenge against their employee status.

'You further warrant that neither you nor anyone acting on your behalf will present any claim in the employment tribunal or any civil court in which it is contended that you are either an employee or a worker,' the clause states.

Should a Deliveroo courier challenge the clause, a separate clause states they will be contractually required to pay the firm's legal costs.

Katarzyna Boguslawska, a corporate partner at Carter Lemon Camerons, said the provision 'serves more as a deterrent rather than an enforceable clause' given the reluctance of the courts to view clauses that restrict access to justice favourably.

She added that this could change depending on the outcome of a similar dispute on workers' rights involving Uber.

Last week Uber was taken to a tribunal by two London taxi drivers who claimed that they should be considered 'employees' rather than 'self-employed'.

The claimants allege that the company is acting unlawfully by not providing standard workers' rights, such as holiday and sick pay, and lunch breaks.

'If the tribunal confirms the status of the drivers as self-employed, then any attempts at contending this status by people in similar working circumstances are likely to be futile, and therefore any such claims would, most probably, expose the parties to unnecessary legal costs,' said Boguslawska.

'If, however, the tribunal finds that the drivers are in fact employees, a surge of similar claims is likely to be expected. The Uber case may reshape the contractor's model of working. It may also bring clarity between the various ways of engaging workforces.'

Boguslawska added that 'the differences between employees, workers and self-employed contractors are sometimes blurred,' a view echoed by Donna Martin, an employment associate at Mackrell Turner Garrett.

'We are seeing a rise in the number of individuals providing their services on a 'self-employed' basis, with the line between self-employed and worker becoming increasingly blurred.'

Martin believes the degree of control Uber exercises over its drivers will be a crucial element in the case.

'If it is proven that the drivers are expected to perform their services personally and that Uber has day-to-day control over them, there is a possibility that they will be deemed to be workers.

'There are already 17 other Uber drivers who have initiated proceedings; if the test case finds that they are workers the floodgates will open and claims may not just be limited to Uber drivers, but will extend to those who have been mis-classified as self-employed.'

On the legality of Deliveroo's clause, she added: 'Any attempt to limit or exclude the rights of a worker under the Employment Rights Act 1996 (ERA) will not be enforceable as it will be deemed void under section 203 ERA.'

Jo Yeates, head of employment law at Hethertons Solicitors, agreed that control was a 'crucial factor' in determining the true status of employees but said talks of the floodgates opening was 'not likely'.

'Lots of businesses try to have their cake and eat it - they label the individual as self-employed but then proceed to control them in the same way they would an employee.

'The legal principles are well-established but I think it is attracting more attention because, along with zero-hours contracts, this type of arrangement is more common in the modern workplace.'

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Company, Consumer, and Contract Contracts & Rights