Lawyer Monthly Magazine - June 2019 Edition

Contact Paul Stevens Partner 020 8290 7422 www.judge-priestley.co.uk Paul Stevens My name is Paul Stevens, Judge and Priestley’s Disputes Resolution Partner (General Disputes). I have been advis- ing on employment law for some 25 years. Firm Profile Judge & Priestley has provid- ed legal services to the wider North-Est Kent Area since 1889 and now incorporates both Preston Mellor Harrison and Pritchard Joyce & Hinds. control of the management, should they choose to exercise it. If the grip on their day to day activities is less than you might expect from people managing employees, they may be workers, instead of employees. So long as the management muscle can be flexed and there are other factors more consistent with employment, such as personal service, on balance they may not be self- employed, even if they are paying their own taxes and national insurance. Many employees may believe that bringing up a case with their employer can be a lost cause; can you share when you would advise employees to seek legal action against contractual abuse? This is a complex question, because it involves questions as to both merits and economics. Once you have identified the merit of a case, you have to decide how to fund it. Most conditional fee arrangements are disadvantageous to the employee because they involve a mark-up, which cannot be passed on to the respondent, and in any event, it only benefits employees if they are awarded costs, which is relatively rare in Employment Tribunals. The majority insurers exclude employment cases (although sometimes an existing insurance policy may fund, it but this is rare). Therefore, costs to trial can be high. They can sometimes overwhelm the damages recouped. Merits are also tricky. A careful sifting of the terms and conditions of the contractual arrangements may show a finely tuned balance of considerations. There are many factors to weigh in the balance, control being significant. Each case is decided on its own facts. You may think, for example, that a couple who lived in and took care of a property without interference from the owners, and virtually on their own terms, were self- employed, but they were held to be workers because the owners could have taken back control at will. In the end, the tribunal will look at your swan and try and undertake a species evaluation: if it quacks like a duck and walks like a duck, it is probably not a swan, despite the feathers. What would ordinary right-thinking people consider to be the reality on the ground? When, however, you have a highly meritorious case and the client has the money or backers to fund it, there is likely to be a settlement. So it is worth pushing the claim as far as you can. You only have three months, in most cases, to bring the claim in the Employment Tribunal and you have to undertake mandatory ACAS early conciliation with the Respondent (which fortunately extends the time limit). In your opinion, why do you think Uber has lost its third case regarding their employment contracts? They lost because workers and employees have a significant body of statutory rights and self-employed services providers only have statutory rights of universal application. The Tribunal will only find that those rights are denied to service providers if the self- employed contract is an arms- length negotiated contractual relationship, where the service provider contractually binds him/herself to provide a service but determines the manner in which the service is provided and has substantial control over the day to day mechanics as to how that service is provided, including who provides it. Uber’s working business model simply doesn’t suit that. To provide an efficient and popular cab service, and dominate the market, it has to exercise real control over its drivers: they don’t just find customers on their own recognizance without any concern for brand, efficiency and client care; they [the drivers] must be subject to very real management control, or the potential for it. That, at the very least, makes them workers, if not employees, with some statutory rights. The Employment Tribunal jealously guards the statutory rights of service providers. However, careful consideration must be given to the type of remedy being sought-just because, for example, they may not be self- employed does not mean they are entitled to bring a claim for unfair dismissal, if they are found to be workers. From this, can you share what employers can take from these proceedings? If you want to avoid complex and costly proceedings, be honest about what your goals are when taking on service providers. If the reality is that your business model requires you to exercise real control, or you reserve the right to do so, a self-employed contract may not be enforceable. Shedding the responsibility for statutory rights comes at the cost of control of the mechanism for delivery of the service. Let the buyer of these services beware. LM JUN 2019 25 Expert Insight www. lawyer-monthly .com