The return of recreational cricket has been an interesting experience for me and many others. It allowed me to go back to giving people the finger in public (as an umpire). Accompanying cricket’s return is complex and exacting guidance for sanitisation breaks, social distancing in the field and regular ball sanitisation. As with all lawyers, the chance to use difficult rules to try and ruin everyone’s day is, of course, one I relish(!)
In a short space of time though, the cricket ball has gone from being a “natural vector of disease” to the means of a return to something near normality for many, and, of course, ruined weekends for the partners who get dragged along against their will. In the same way employment status cases spent a long time without gracing the hallowed turf of (the House of) Lords and the Supreme Court…
… If that wasn’t a contrived segue, nothing is.
A Quick Summary
That all changed with Autoclenz Ltd v Belcher and others  UKSC 41, and barely a day has gone by without the fundamental question in our field being re-examined at the highest level. Since Autoclenz, the Supreme Court has decided O’Brien v Ministry of Justice  UKSC 6 (part-time judges are “workers” for EU law purposes), Bates van Winkelhof v Clyde & Co LLP  UKSC 32 (LLP member may be a worker) Pimlico Plumbers Ltd v Smith  UKSC 29 (ET entitled to find that plumbers were not truly self-employed), amongst others. The umpire’s decisions have, in the main, been in one direction.
The most recent case is Uber BV and others v Aslam and others UKSC 2019/0029. Uber have, of course, been involved in employment-status litigation across the world in recent times, and have not, generally speaking, come out unscathed. While I am not one for predictions, I did enjoy Daphne Romney QC’s pithy summary on Twitter that this is a case where:
“At issue, whether people doing work at Uber’s direction, using Uber’s routes, assigned passengers who don’t pay them directly, and subject to sanction if they turn down work or drive badly, are actually, you know, under Uber’s control.”
A number of employment lawyers have speculated whether this will be an opportunity for the Supreme Court to revisit Autoclenz. Those of us who regularly advise in this area will be familiar with Lord Clarke JSC’s judgment that:
“the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances”.
Uber’s Journey Through the Tribunals and Courts
The Claimants in Uber have thus far succeeded in the Tribunal, the Appeal Tribunal and the Court of Appeal. HHJ Eady QC in the EAT summarised the original decision, in relation to the contractual terms, as:
“the ET concluded any supposed driver/passenger contract was a “pure fiction”, bearing no relation to the real dealings and relationships between the parties. It further rejected any suggestion that Uber was working for the drivers – the only sensible interpretation was that the relationship was the other way around.”
Part of the reason why Autoclenz might be revisited can be seen from the submissions made by Dinah Rose QC to the Supreme Court in Uber. These included saying:
“The task of the ET in this case was to construe the contractual relationship…in order to determine whether conditions in limb (b) were or were not met.”
“If you choose to enter into a contract with these features [i.e. personal service to the employer who is not a client or customer of a business], you have these rights [of the minimum wage, holiday etc.]”
In the latter case, the implication of course being if you choose to enter into a contract without those features, you don’t get employment rights. The thrust of the submissions to the court were very much to attempt to reassert the primacy of the written agreement as a starting point. The error that the majority in the Court of Appeal were said to have made, was to say:
“In this type of case, you don’t even start with the written contract… the written agreement is part of the background and the court deduces what it thinks is the best fit of the relationship.”
This is, of course, Uber’s interpretation of the Court of Appeal judgment, rather than an extract from the judgment.
I suspect that most of you, like me, have applied Lord Clarke’s judgment from Autoclenz on a fairly flexible basis since it came out in 2011. Most of the times I have had to consider employment status, it has been a more “traditional” argument about whether a person is genuinely self-employed with a fairly clear agreement. The judicial consideration of Uber’s agreement in this case has been somewhat less forgiving of its contractual provisions.
Thus far the contract Uber drafted has been described as:
“an excellent illustration of…”armies of lawyers” contriving documents in their clients’ interests which simply misrepresent the true rights and obligations on both sides” by the ET, and by the majority of the Court of Appeal as:
“the convoluted, complex and artificial contractual arrangements, no doubt formulated by a battery of lawyers, unilaterally drawn up and dictated by Uber to tens of thousands of drivers and passengers, not one of whom is in a position to correct or otherwise resist the contractual language.” and by Lord Justice Underhill (dissenting) as including:
“some egregiously ugly pieces of corporate-speak, tendentious definitions and lawyerisms.”.
The Competing Arguments
It is, therefore, hardly surprising that Uber is trying to assert the primacy of its contract. Quite reasonably it wants what it has drafted to be the true agreement. The issue that the Supreme Court is likely to have to grapple with, is whether this is going to involve a departure from Autoclenz and, if so, what the effect of that will be?
Both sides argue that whatever Autoclenz means, they should win. We could therefore find ourselves, much as we did with Pimlico Plumbers, with a case decided on the basis that there is no need to analyse the law. Twitter aficionados can find my thread on the second day’s arguments here. Further, there may be some scope for unification between EU an GB law based on judicial interventions indicating something along these lines.
A Thought Experiment
I’ll leave you though with these (summarised) thoughts from Oliver Seagal QC for some of the test Claimants.
Imagine there was a minicab company who had just won themselves an operator’s licence in a large city. That company starts up by: employing its own drivers, deciding where they take people, the terms on which they are allowed to pick up fares, collecting payment and only then distributing it to drivers less overheads, withholding information about the passenger, requiring drivers to meet rules about how many fares they decline and acceptable behaviour.
Now imagine that after operating for a few years, the MD of the minicab company decides they want to make all their drivers self-employed. That will remove liabilities for tax and employer’s national insurance, and due to the size to which they’ve grown, this is going to be millions of pounds. It is, however, important to that MD, that their customers remain satisfied. It is vital therefore that these self-employed drivers don’t appear to be available to a customer when they aren’t really, don’t cancel trips just because they won’t be particularly profitable and that their engagement can be ended if too many people complain about them. The MD also wants to retain control over refunds if there is a complaint about the route.
The lawyers hired by the MD are able to do all of this, but make clear that this will all require a new contract disclaiming any obligations on the driver. The MD seems to be OK with this, but insists that control is retained in practice. That sounds very much like a worker contract in all but name?
Of course, this is only the Claimants’ argument and the whole case may be a damp squib.
The Supreme Court may do what it did in Pimlico Plumbers and effectively say that the Tribunal was entitled to reach the conclusion it did…
…But if there’s more to the case though, the law on worker status could be on the move.