No back-peddling - workers’ rights are gaining pace in the gig economy

Olivia Faith Dobbie

Following the recent decisions of the Court of Appeal in Pimlico Plumbers and the Employment Tribunals in Citysprint and Uber, companies in the gig economy suffered another blow yesterday with the decision in Boxer v Excel Group Services Limited. This case augments the growing number of judgments in which staff that are ostensibly self-employed are found to be “workers” in law, and hence entitled to basic rights such as holiday pay and rest breaks.

Cloisters’ Caspar Glyn QC and Rachel Barrett successfully represented the Claimant. Olivia-Faith Dobbie reports on the judgment and its implications.

It is estimated that something in the region of five million people in the UK now work in the so-called “gig-economy”. They are often engaged under contracts which purport to be contracts for their services – making them “self-employed”. As such they are liable for their own tax arrangements and disentitled to even the most basic employment rights, such as national minimum (or living) wage and paid holiday. This is obviously more cost-effective for gig businesses, thus maximising profits, but creates insecure and exploitative working environments for gig workers.

Yesterday’s judgment in Boxer is another example of the courts’ willingness to look past Delphic contractual documentation and recognise the true nature of a working relationship. Employment Judge Wade, sitting at London Central Employment Tribunal, declared that Mr Boxer, a cycle courier was a “worker”. Her judgment focuses primarily on the degree of control that Excel exercised over Mr Boxer, noting that he had no bargaining power when it came to negotiating his contract or his rate of pay. Further, he was obliged to be available for work 5 days per week and if he wanted time off during normal working days, he had to arrange it in advance. Moreover, he was expected to stand-by in between jobs and had to seek permission to move locations. Finally, he was not permitted to take a break if a new job came in.

This judgment does not establish any new legal principles, nor is it the first gig economy case in which workers have been declared to be such - Uber, CitySprint and Pimlico Plumbers have all trodden the same territory in recent years. However, the judgment does add to the groundswell of cases in this area, thus undermining gig businesses’ protestations that each case is specific to its facts. In all of the above cases, the respondents have sought to argue that the judgments against them only applied in respect of the individual claimant and that there is no wider application obliging them to recognise the rights of their workforce more generally. As the number of judgments increases establishing gig workers’ rights, such arguments become increasingly untenable. Sooner or later, there must come a “tipping point” and gig employers will have to yield to the requirements to treat their workers lawfully.