REWARD
How did this apply in the famous Uber case? In Uber BV v Aslam and others, it was accepted that many drivers couldn’t freely substitute themselves. The courts then had to consider whether they could still qualify as self-employed using the second route referred to above. To achieve such a finding, Uber would have to be declared a client or customer of the drivers, i.e., there could be no control by Uber or mutuality of obligation in the working arrangement. The courts found that Uber exerted a significant amount of control over the drivers, which was the fatal blow to Uber’s legal argument. Examples of control included the fact that: l Uber set the fares and conditions of travel, meaning drivers had no say in contractual arrangements with passengers l communication between the driver and passenger was carried out through Uber’s own system; Uber didn’t pass the contact details to the driver and also withheld the passenger’s surname l Uber would determine the journey route l Uber would temporarily lock drivers out of
work themselves or whether they can send someone else. Control considers who gets to say when, how and where the work is done, and mutuality of obligation refers to whether the parties involved have to offer work and provide their services respectively. There are two main ways an individual can be self-employed, for employment rights purposes. First, someone will be self- employed if they have the unfettered right to substitute. This engages the personal service test referred to above. It means having free rein to send someone to do the work in their place with no restrictions applied. If someone cannot freely substitute, then personal service applies. Second, self-employment tests can be met where the individual cannot freely substitute but the person for whom the work is being done is a client or customer, i.e., they’re in business on their own account. Being in business on one’s own account means they control how, when and where they do the work (rather than those decisions being made by the person the work is done for) and that an offer of work doesn’t have to be accepted when made.
the system as a punishment for cancelling or refusing fare l drivers’ performance was ‘scored’ by passengers and those with consistent low scores would be subject to an improvement programme managed by Uber. It’s worth pointing out that the driver agreements were clear that the arrangement was one of self-employment. The courts said that written agreements would be considered but hold no weight if they didn’t reflect the true agreement between the parties. When the Supreme Court delivered its judgment, it confirmed the drivers’ entitlement to those rights available to workers which include national minimum wage (NMW), paid annual leave, protection against unlawful deductions, an itemised pay statement, etc. Failure to provide these entitlements carries a risk of employment tribunal claims on each point and even enforcement by HM Revenue and Customs when it comes to NMW underpayments. There are also other factors that can play a part in employment status determination and this is a simplified overview of how status works. n
Automatic enrolment and pensions for payroll This course highlights employer’s challenges, responsibilities and obligations to all parties involved with pensions and auto enrolment, to enable compliance.
● Types of pension schemes ● Automatic enrolment ● Automatic enrolment processes ● Contributing to the pension scheme ● Implications on tax ● Implications to payroll ● Automatic enrolment and TUPE ● Communicating pensions ● Auto enrolment compliance ● Penalties and reviews of compliance
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Visit www.cipp.org.uk/training for details and to enrol
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| Professional in Payroll, Pensions and Reward |
Issue 90 | May 2023
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