The Elephant and the Taxi driver
We all know what an elephant looks like but could you describe the beast to someone who has never seen one before? OK, so what’s an elephant got to do with employment law? The answer is that some businesses have similar problems when describing who is actually employed by the organisation, who qualifies as a ‘worker’ and who is genuinely self-employed. It’s fairly easy to describe an employee; they have a contract of employment, work certain agreed hours for an agreed amount, are pretty much controlled by the employer and are subject of company rules etc. Similarly, if someone is genuinely self -employed they would normally tip up at the ‘job’ (at some stage), quote for it, have one of their ‘lads’ carry out the work and submit an invoice once the job is done. So, now we have the ‘elephant test’ which is…drum roll; describe a ‘worker’. The law in this area is exceptionally tricky as Uber, the taxi app organisation found out to their cost a couple of week ago when the employment tribunal ruled that Uber drivers were not, as Uber claimed, self- employed but were in fact ‘workers’ and therefore entitled to certain benefits such as, (amongst other rights), minimum wage and holiday entitlements. The tribunal ruling will not just affect the two Uber drivers who brought the claim but any employer who engages someone without being absolutely clear of their employment status. And, whilst this judgment is likely to be appealed, it is a warning to organisations that engage people as ‘contractors’ or self- employed to get it right. An individual’s employment status is not just a matter of their rights at work but also HMR&C will have an interest in the tax return and can claim as much as seven years back tax from the employer for getting it wrong. If you’re not sure, don’t’ risk being trampled, call Howarths and one of our specialist and legally qualified team will be happy to discuss.
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