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Questions around employment status within the Gig Economy continue

Posted by Lotty Reeves on 14th October 2021

Amazon drivers have become the latest delivery drivers to challenge their employment status. It has been reported that two Amazon drivers are gearing up to bring a claim in the Employment Tribunal challenging their employment status and seeking compensation for their alleged “misclassification” as self-employed drivers, rather than workers.

The two drivers are part of a growing movement within the Gig Economy who believe that they are workers. There are currently three categories of workers within the UK. At one end of the spectrum are employees who are given the most protection and rights. At the other end of the spectrum are self-employed individuals who do not possess many rights, such as to paid holiday, sick pay and entitlements to NMW. In the middle, is the category of worker. The demarcation between the different categories is extremely blurred and can be difficult to determine. However, it is important to get this right because employment status determines what rights and protections individuals are entitled to.

In determining employment status, Tribunals assess the level of control that the employer has over the individual and whether the contract requires personal service. The more control that is exercised by an employer, the greater the likelihood that worker status will be established. For many delivery drivers who are told how they should work and what to wear, there will clearly be some element of control. Whether the level of control Amazon has over its drivers is sufficient, remains to be seen.

It is clear therefore that worker status will still be decided on the facts of each case. While this flexibility allows the law to be applied by the Tribunals as appropriate, it does introduce uncertainty. When classifying individuals’ employment status, employers need to be aware of the factors Tribunals will consider in determining worker status and how these might apply to their workforce. If you are unsure about what your workers should be classified as then contact our employment law team.

If the Amazon drivers are successful in proving worker status, thousands of drivers could be owed over a hundred million pounds in compensation. It is clear from the recent trend of cases, that the Tribunals will seek to protect workers as this is the underlying purpose of the legislation. With this being the case, employers need to think carefully about the classification of their workforce. Amazon may be the latest to find out, that the consequences of getting employment status wrong can be severe.

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