Few aspects of the world of work have received more attention in recent times than the so-called “gig economy”, in which bicycle couriers, Uber drivers and others work for companies, often through an app, with no set schedule and paid on a per-job basis. However, the dominant feature of the “gig economy” is the fact that the companies say the people who work for them are independent businesspeople with no employment rights, when in law they are actually limb (b) workers, a category of self-employed individual entitled to basic rights such as paid holidays, minimum wage and protection from discrimination.
Public debate over the root cause of the problem can be distilled into two competing narratives. On the one hand, you have the gig economy companies, the government and Matthew Taylor, who conducted a review of modern employment practices for the government. These guys say the problem is confusion in the law, or the inability of the law to keep up with the times, which can result in workers being inadvertently deprived of rights to which they’re entitled. On the other side of the debate, you have those of us who have been submitting and repeatedly winning tribunal cases establishing the gig economy’s labourers as limb (b) workers, in particular the Independent Workers’ Union of Great Britain (IWGB), and of course the judges who are writing these decisions. We say the law is pretty clear and the companies are clearly on the wrong side of it.
In what could be applied to the gig economy in far more general terms, the employment judge in the Uber workers’ rights tribunal famously summed up the matter: “The notion that Uber in London is a mosaic of 30,000 small businesses linked by a common ‘platform’ is, to our minds, faintly ridiculous.”
It is against this backdrop that we need to assess the significance of Wednesday’s supreme court decision in the case of Smith v Pimlico Plumbers, in which it unanimously held that Gary Smith was a limb (b) worker and entitled to employment rights. This was a highly awaited decision that has already generated commentary from experts in the field. However, if the question is “What did it change?”, the short answer is “Not much”. It’s more significant in that it confirms what we already knew to be correct.
First, the concept of a limb (b) worker has actually done a remarkable job keeping up with the times. Introduced in its modern form as far back as 1971, decades before the technology behind the Uber app could have possibly been envisaged, it nonetheless recognises that today’s forms of employment – both modern and traditional – still need to provide basic protections.
Second, to the extent that there’s any confusion about who should get employment rights, the cause is the companies not the laws. In another comment that could also easily apply across the board in the gig economy, the supreme court complained: “So Pimlico there put before the tribunal an irrelevant contract, cast in highly confusing terms, and now complains that the tribunal’s interpretation of them was highly confused.” I’m bolstered in this view not only by the fact that nearly every high-profile gig economy case of late has resulted in a loss for the company, but also in that Pimlico Plumbers itself lost its argument on worker status four times in a row.
There is, however, one area in which this judgment does helpfully take us forward. That regards the requirement that you have to do your work yourself to be a limb (b) worker and can’t send someone else to do the job for you whenever you want. This issue has become the favourite focus of the courier companies’ overzealous corporate lawyers: you simply introduce a clause in the person’s contract saying they can have someone else do the work for them and you’ve miraculously transformed a low-paid bike courier into an independent business person! Luckily, tribunals and courts usually see through this nonsense, but every once in a while the company is able to get away with exploiting the loophole and the worker. Today’s judgment has closed the loophole. As long as the dominant feature of the contract is one where the individual does the work themselves – which is the case in every courier business model I’ve ever seen – then the person is still covered by those legal protections.
If the law’s interpretation is both clear and able to keep up with the times, and yet hundreds of thousands of Britain’s low-paid workers are still unable to enjoy basic rights such as minimum wage, paid holidays and trade union representation, it is a rather clear indication that there’s a problem with enforcement. These workers need more and better rights than the minimums provided in law, but getting the rights they’re legally entitled to as a start would be a massive step forward. If nothing else, this judgment should be yet another cue for the government to step out of its role of useless bystander and start proactively enforcing employment law.
- Jason Moyer-Lee is the general secretary of the Independent Workers’ Union of Great Britain (IWGB)