Do those working in the ‘gig-economy’ count as employees?

Question

Employment Law: Do those working in the ‘gig-economy’ count as employees?

Answer

Questions have been raised recently as to whether those working for companies such as Uber count as employees or are in fact self-employed. The question is important for the workers, as employee-status comes with a number of employment rights to which self-employed workers are not entitled, such as minimum wage and sick pay.
In order to determine whether someone is an employee, the courts will look to the economic reality of the relationship between the worker and the alleged employer, with a particular focus on the level of control which the alleged employer has over the worker and how he or she does their work. The less control, the less likely there is a relationship of employment. Other factors which are relevant are whether the worker is entitled to be offered work and obliged to accept it (which indicates employment) and whether the worker is entitled to seek out work from other companies (which indicates self-employment).
Bearing this in mind, it is likely that those working for Uber are not employees, as there is no obligation for Uber to offer work, nor is there any obligation for Uber drivers to accept work offered. While there are minimum requirements controlling how driver do the job, the driver must provide all their own equipment and is generally free to work as they please and work for whoever they please. The position of those in other gig-industries, however, may be different depending on how their working relationship operates.

References

Table of Cases

Yewens v Nokes (1880) 6 QBD 530

Quashie v Stringfellow Restaurants Ltd [2012] EWCA Civ 1735

Market Investigations Ltd v Minister for Social Security [1969] 2 QB 173

Table of Legislation

Employment Rights Act 1996

Websites

Barr C, ‘Uber drivers await tribunal verdict on employment status’, (Guardian, 12 October 2016), accessed 22 October 2016

Wilkins G, ‘The Uber Contract Explained: ‘I would be loathe to sign it’’ (The Sydney Morning Herald, 25 May 2016) accessed 21 October 2016