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Uber under the spotlight

‘Worker’

There has been much publicity about the Tribunal decision that Uber drivers are “workers”. As such, they are entitled to be paid annual leave, whistle blower protection and the national minimum wage (but they do not get the rights of “employees”, such as unfair dismissal, redundancy etc.

Uber is seen very much as the flagship of those working in the so-called gig economy where individuals are debatably classified as self-employed, thus reducing costs for the company and giving them a competitive edge (but denying those individuals the employment rights that they might otherwise have had, and denying society the benefit of National Insurance and payroll taxes that might otherwise be paid). There are similar claims being brought against companies such as City Sprint, Hermes and Deliveroo.

Uber’s argument was that it was not a taxi service but a mere technology platform which connected drivers to passengers. Thus drivers were self-employed because they supplied their own vehicles and were responsible for all running costs. There were extremely complex contractual documents (using a fictitious, twisted language and brand new terminology). But the Tribunal focussed on the familiar principle that it is not the label the employer gives to the relationship that is important – what matters is how the relationship works in practice. On the facts, it was patently apparent that they were not self-employed, but “workers”.

It is worth making the point the Tribunal noted that Uber could have devised a model under which its drivers were genuinely self-employed, so this decision (if upheld) is not fatal to the big economy. At the same time, however it is clear that HMRC is making a major effort to investigate the abuse of self-employment and the wrongful use of off-payroll working. Accordingly, those companies that rely on a self-employed model will need to carefully review their documentation.

Tracking

Uber tracked previous users iPhones even after they erased the app, a practice that, in the long run, earned CEO Travis Kalanick a scalding from Apple CEO Tim Cook, the New York Times reports.

Uber pushed back saying that the tracking is a common industry practice used to prevent fraud and account compromise.

Cook reportedly told Kalanick, “I’ve heard you’ve been breaking some of our rules,” and threatened to yank Uber from the App Store if it didn’t stop tracking iPhone customers. Kalanick reportedly complied.

In late 2016, an update to Uber’s app allowed the company to begin tracking its customers’ locations even when they aren’t using the app. Uber said that it would only track users for five minutes after they begin or end a ride in order to ensure a more accurate pickup location and a safe exit from the vehicle after the ride. This tracking relies on user consent – an Uber customer has to enable location services for the app – and is in line with Apple’s developer rules.

Immigration checks

The government has decided to bring into force provisions of the Immigration Act 2016 which will require local authorities to check that taxi and mini-cab drivers have the right to work in the UK. Those requirements came into force last December.

Employers are generally aware that they have to carry out “right to work” checks against “employees”. In practice, few will carry them out against “workers” since they are not legally obliged to do so. However, a point has been made that the immigration authorities are often reluctant to accept the subtle distinction between “employees” and “workers”.

Failure to carry out “right to work” checks can result in civil liability of up to £20,000 per illegal employee. Accordingly, those businesses using a self-

employed model should be aware of the potential risks of being investigated by the immigration authorities (even if, strictly speaking, their staff are not subject to those provisions).

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