The growth of the “sharing” or “gig” economy in the past five years has provoked concern over the lack of rights given to those who work in such industries. The Employment Tribunal’s judgment in Aslam, Farrar v Uber applied traditional principles of employment law to find that Uber drivers were “workers” and not self-employed contractors. However, closed categories such as “workers” and “contractors” are no longer relevant in the age of the gig economy. Parliament must intervene to adapt employment law to new industries and reduce uncertainty over legal classification.
The tendency of official statistics to formally distinguish between those who are in “employment” and those who are in “self-employment” elides the reality of the 21st century labour market. Data from HM Revenue and Customs suggest that close to a third of those who are “employed” also report income from self-employment.
This, in part, is a feature of the new “gig economy”. This tends to refer to people using apps to earn money from assets they own or their ability to do a certain type of work. The emergence of this form of work has challenged traditional notions of what constitutes a “worker” or “independent contractor”. This was a concern highlighted by Judge Vince Chabria in the Californian case of Cotter v Lyft, Inc.
English employment law defines a worker as an individual who has entered into:
(1) A contract of employment; or
(2) Any other contract, whether express or implied and (if it is express)
whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.
These provisions have proven to be increasingly difficult to apply today, as well illustrated in the recent case of Aslam, Farrar v Uber.4 Uber is a digital business which allows consumers to request drivers via a smartphone app. When a nearby driver accepts the request, the app provides information about the driver including the vehicle type and license plate number. After arriving at the destination, the app calculates the fare and charges it to the consumer’s Uber account.