ctaplinlegalwriting

In November 2017 the Employment Appeal Tribunal (‘ET’) sitting in London concluded that any Uber driver who had the ‘Uber app’ switch on and who was within the territory in which they were authorised to work and was able to accept assignments provided to them by Uber London Ltd (‘Uber’) was a ‘worker’ in accordance with section 230 (3) (b) of the Employment Rights Act 1996.1 A little over a month later the Fair Work Commission (“FWC’) in Australia came to an entirely different conclusion when considering whether an Uber driver was an employee for the purpose of accessing unfair dismissal legislative protections. In both cases the decision makers considered much the same factual scenario and yet came to entirely different conclusions, despite the indicia used to determine the ‘employment relationship’ being similar in both the United Kingdom and Australia. In perhaps the most interesting part of the judgment, Deputy President Gostencnik in the Australian FWC stated that the UK legislation had a broader interpretation and that:- ‘ traditional legal tests may be out-dated in their failure to account for an evolving digital economy in which tempory and short-term positions are common’. This naturally leads to the question of how legislators could develop laws to refine notions of the employment relationship and broaden protections for participants in the digital economy. The ‘Uber’,’Deliveroo’ and ‘Airtasker’ brands – ‘hyper-flexibility’ for whom?