Despite another successful challenge to self-employed status against a courier company, with two more likely to follow, the legal position has not changed. Tribunal decisions are not binding, Uber has appealed a similar decision and the courier companies will probably follow. The appeal process can be prolonged for many years.
What will make a difference is the employment practices review currently being undertaken by Matthew Taylor for the government, due to be published in June. Mr Taylor has recently stated that ‘workers’ rights should be overhauled to reflect the gig economy realties and if a company wants control over its workers then it should respect their rights and entitlements.
‘The problem is that the self-employed workers have benefitted from lower taxation and NI contributions. The test which HMRC applies to determine employed/self-employment status is different to that which applies under employment law. Under HMRC’s test individuals are either employed or self-employed. HMRC does not recognise the concept of workers. Employment law applies a test of control: the more autonomous a person is the more the likely they are to be self-employed. Workers under employment legislation have some autonomy and rights such as the national minimum/living wage and holiday pay, but not the full rights of employees (who have no autonomy).
If the law is changed so that gig economy workers and similar become entitled to holiday pay and the national minimum/living wage, then it is likely their NI and tax contributions would increase too. Price increases for customers will, doubtless, follow.
Boxer’s case is the latest in a string of tribunals against gig economy employers including the taxi hailing service Uber, and the second of four relating to couriers’ employment status backed by the Independent Workers Union of Great Britain (IWGB). The next case, against eCourier, is due to be heard in May. The fourth is against Addison Lee.