Well, if that’s what the law says then….

Deliveroo won the right not to give its couriers the minimum wage or holiday pay on Tuesday, dealing a blow to campaigners for workers’ rights in the gig economy.

In a key legal ruling the Central Arbitration Committee, a body that resolves worker disputes, said the food delivery firm’s riders were self-employed contractors as they had the right to allocate a substitute to do the work for them.

The case, brought by the Independent Workers Union of Great Britain (IWGB) as part of an attempt to gain recognition by the company, relates to couriers in the Camden and Kentish Town districts of north London. But it is seen as a test case for riders across the UK, including those working for other firms similar to Deliveroo.

Gives Uber an idea too no?

67 comments on “Well, if that’s what the law says then….

  1. I thought Uber drivers were allowed to turn down work? This is quite a big test in the IR35 reviews I’ve been involved with. I used to turn some work down just to make that point. I also made sure i had the right of substitution just to be on the safe side.

  2. Right of substitution might be an issue if the driver has to be DBS checked etc. Or checks have been done on the vehicle (licensing event etc). I don’t know if Uber allow that right now.. if not, I can see why they’d be minded to not want to.

  3. I do like this on going argument… I want the flexibility and freedom of being self employed with all of the security and benefits of being an employee…

    Pick one, you can’t have both.

  4. If your main test of self-employment is the right to allocate a substitute, then that’s the entire entertainment industry screwed.

  5. “The case, brought by the Independent Workers Union of Great Britain (IWGB)”

    Just as the Uber case was “brought by a group of drivers supported by the GMB trade union.”

    This isn’t about a groundswell of disgruntled workers, it’s about trade unions protecting existing members or trying to increase membership.

    They’ll always find some worker who isn’t doing as well as they think they have a right to use to front the case.

    Uber will just re-write their contract. The vast majority of drivers will re-sign as it will make no practical difference to what they do.

  6. The judiciary in this country, especially the lower courts, have moved from from;

    “What does the law say?”, to

    “What did the legislators intend the law to say?”, to

    “What interpretation of the law will result in the most amount of tax being paid?”

  7. What makes these emlloyed/self emoloyed I’d dues difficult – and what will keep the litigation rolling on – is that it is more of an art than a science. There are ‘badges’of employment and of self-employment each of which, or none of which, might be determinative in a particular case.

    As an easy example: I commission an artist to paint my wofe’s petri and make her as beautiful on canvas as she is in life. There is no way in Hell that artist is getting the right to nominate a substitute; they are nevertheless self-employed.

  8. Bloke in Cornwall: “I do like this on going argument. I want the flexibility and freedom of being self employed with all of the security and benefits of being an employee… Pick one, you can’t have both.”

    Yeah? Ninety per cent of Deliveroo and Uber workers would love to pick the employee option, but they can’t because it’s not on offer. Perhaps you’d like to offer them a job, BiC? No? I thought not. It might cost you some money. Much cheaper just to sneer at people who aren’t nearly as well off as you are.

  9. A fascinating series of posts here

    Graeme says:
    November 14 2017 at 3:16 pm
    To lift your focus above Brexit for a moment, it seems that Venezuela has defaulted on its debt. Do you have any idea why?

    Reply
    Richard Murphy says:
    November 14 2017 at 8:49 pm
    Yes

    The debt is not denominated in its own currency

    Any country doing that is at risk of default

    Reply
    Lefty Councillor says:
    November 15 2017 at 7:05 am
    “The debt is not denominated in its own currency

    Any country doing that is at risk of default”

    Indeed. Venezuela’s courageous reclaim of state assets has meant neo-liberal external investors don’t want to partake of the Venezuelan currency which must be a good thing.

  10. Spiro Ozer – I do employ people – have done for 10 years now nearly… I don’t use sub contractors myself… I have personally taken the self employed option because i want the flexibility to choose my projects and work…

    As for being employed – There are many, many private hire companies that hire staff so they could easily find a job, not sure on food deliveries as never been involved in that market.

    As for sneering at other people – I’m not sneering, i’m saying they have a choice – they need to make one… I work 12 hrs a day 6 days a week – i’m away from home on a weekly basis, i drive over 30k miles a year to visit customers… So forgive me if i don’t care about their moaning – most of them would not give up all of the things i do but want the same money…

  11. Spiro,
    Perhaps you would like to offer them a job, Spiro? No? Thought not. Much easier to sneer at people who do get off their hind ends and create employment opportunities, isn’t it?

  12. Spiro Ozer – Also – do you employ people or are you one of the left telling me what to do and not doing it yourself?

  13. A quick google suggests that the last IWGB union return was 2016. It had 915 members. Not 915,000. 915. And the bloke running it gives a .ac.uk email address for contact


  14. Yes
    The debt is not denominated in its own currency
    Any country doing that is at risk of default

    Can’t help thinking he has left out a few steps. What are they? Oh yes…borrowing fucktons of money over many years without the means or even intention to pay it back.
    And as it isn’t in their own currency they cannot eliminate the debt by destroying the currency’s value.

    Yes, that’s it.

  15. Well said BiC.
    I am currently working in a small group to start-up a new company. We have investors lined up (ready to commit tens of £millions) and we are looking to employ ~20 people initially.

    So, what is stopping us? Regulators. We have so far spent more than a year engaging with the regulators, who have only now told us they have “significant issues” with parts of our business model that we discussed with them at our very first meetings.

    Regulation may be necessary. But it is certainly an impediment to employment. Anyone who doesn’t believe this has never put their own time & money into a business to actually employ someone.

  16. Rob, but Dick Tater keeps telling us that running the printing presses until the ink runs out means the government will never be in debt. I seem to remember a couple of weeks back that Venezuela ran out of ink.

    We know the real reason, though Dick will never admit it. It was The Curajus State wot fucked it up.

  17. The top guy at IWGB is Jason Moyer-Lee who has a PhD from SOAS for a thesis on the global value chain of tobacco as experienced in Malawi. He does not appear to be on the staff of SOAS

  18. Bloke in Cornwall – “I want the flexibility and freedom of being self employed with all of the security and benefits of being an employee… Pick one, you can’t have both.”

    Isn’t that the way marriage reform is going? Giving girl friends the long term security of marriage?

  19. Unrelated, but idiot disagrees with idiot

    At http://www.taxresearch.org.uk/Blog/2017/11/14/brexiteers-driving-us-to-hell-in-a-handcart-on-the-basis-of-unsound-reasoning/ we get this

    Dom S says:
    November 14 2017 at 3:55 pm
    Right now the EU is moving away from democracy. It cannot be stated less boldly than that.
    And you have every reason to be worried if our politicians don’t object to that, now.

    Reply
    o Richard Murphy says:
    November 14 2017 at 5:28 pm
    We are moving away from democracy
    Brexit evidences that
    See Henry VIII powers
    Reply

    o Dom S says:
    November 14 2017 at 5:51 pm
    How was Brexit undemocratic? We had a non-binding ‘referendum’ (glorified survey really, in the end). Parliament then passed an Act (voted 81% in favour) to trigger the Article 50 notice, as it could have always done, at any time.
    Followed up by an election in which 80% of the electorate voted for a party that promised to deliver Brexit.
    Surely you agree wholeheartedly with my comment?

    Reply
     Richard Murphy says:
    November 14 2017 at 9:31 pm
    No, I don’t
    You ignored my comment

    But here http://www.taxresearch.org.uk/Blog/2011/08/22/is-the-eu-now-a-real-threat-to-democracy-as-well-as-economic-recovery/ Richard Murphy says:

    “Right now the EU is moving away from democracy. It cannot be stated less boldly than that. And you have every reason to be worried if our politicians don’t object to that, now.”

    Quote the old bugger back at himself and he disagrees. Funny old world.

    Tim, may be a post in there. He reads us here, so no doubt he will see the funny side of it.

  20. Dom

    More symptoms of early onset dementia, which is often coupled with increasing irascibility from the sufferer. He seems destined shortly to be cared for in a dementia friendly home, his bedroom piled high with familiar old obsolete yellow and orange tax books to give his dotage a secure frame of reference and thus mitigate the episodes of screaming rage.

  21. I’d like to know when it was that Spiro Ozer spoke to all employees of Deliveroo and Uber in order to be able to tell us with such confidence what they want. Must have taken a very fucking long time.

  22. SMFS makes a very good point indeed.

    But that’s the eternal dance of the rulers and the ruled: they pass laws, we find creative ways around them, they pass new laws, and so on. See also: tax law.

  23. “that’s the entire entertainment industry screwed.” Harvey Weinstein will be jealous.

    Our little family businesses, us and offspring, have had a rule in common – no employees. Did that inhibit our expanding? In the two cases where expansion would have been natural, yes. What about the people we might have employed but didn’t? Tough luck, but that appears to be what’s wanted by the law.

  24. Why can’t they be employed AND self employed and get the benefits of both? After all, doctors seem to …

  25. I think everyone is having difficulty catching up with the new economy.
    Once upon a time you either owned a significant material asset and employed people full time to aid in extracting value from that asset, in which case you were an employer. Or you were one of those employed full time, an employee. Or maybe you extracted value from the asset unaided in which case you were self employed.
    The distinction between a significant and an insignificant asset has blurred. Many work part time, often for different people. People less and less fit the old mold.
    Add in that some are happy to work part-time and others want more work and it becomes difficult to tell how many are unemployed- the underemployed are not yet a recognised category.

  26. Ninety per cent of Deliveroo and Uber workers would love to pick the employee option, but they can’t because it’s not on offer.

    [Citation needed], as the Wikipedians would say. I mean, folk on the left said that about people on zero hours at McDonalds, but when offered fixed hours only about 20% took up the offer.

  27. Diogenes/Rob

    Gauchiste says:
    November 15 2017 at 11:57 am

    All Venezuelan government borrowing should have been raised inside Venezuela and in local bolivars?

    Richard Murphy says:
    November 15 2017 at 2:22 pm

    That’s what we do

    So UK total foreign debt at > $6 Trillion may look like a ginormous fuckton but it actually doesn’t exist.
    QED

  28. I’ve had an amazing idea.

    Why doesn’t the government create a load of money, e.g. £200bn. But here’s the catch – instead of spending it in the UK and then having to tax everyone to “mop up the inflation”, the Government instead invests it overseas and makes a tidy return on it. In fact let’s print £1tn.

    No effect on inflation (because its not spent here) and no effect on the value of the currency, because I fucking say so.

    Nobel Prize please.

  29. Rob

    I suggest you put your idea to this socially responsible organisation which is likely to be enthusiastic (you might want to lose the swearing and the Nobel Prize ref)

    http://www.progressivepulse.org/

    But don’t confuse them with other organisations of the same name based in the US which tried to steal or appropriate the IP of the UK site by BEING REGISTERED ALREADY under the same name before the UK site

    I expect the UK organisation to institute take down proceedings shortly against what are clearly far right Trump supporting survivalist organisations trying to profit from registering domain names which should be reserved for laudable social aims.

  30. On the original point on Uber: yes, Uber could in theory allow substitution to strengthen their argument that the individuals do not work for them.

    All they then need to do is convince the regulator that they should be eligible for a license even though they can’t know who their drivers are, and convince the public to continue to use Uber.

    The problem is that the Employment Tribunal made it clear that Uber’s business model is fundamentally based on there not being substitution (in practice).

    And @Bloke In Cornwall: Uber can choose to have the flexibility of being able to tightly control its workers, or they can have the cost saving of treating them as self-employed. Pick one, they can’t have both.

  31. A fuckton fills the gap between a raft and a slew

    I thought it was Jeremy‘s nickname for Dianne?

    By all accounts this IGWB guy is a serial complainer.

    So we don’t have enough pointless lefties of our own and need to import them from Yankland? It really isn’t something I would consider a scare resource here (especially with free movement of useless excrescences from commie infected France.)

  32. Flat Cap, Diogenes, and Another Paul – good stuff. He looks a dangerous one, running a union as a hobby-horse.

  33. Manhattan British – actually they can have both… Just not with the same person… However I didn’t mention I uber, I said that people need to either be self employed and take the risk / reward or be employed and get the safety… (or be part time both)… I really don’t care what they do as long as they don’t complain about not get it all…

    Discussing uber though… Why can’t they allow substitution of labour on the understanding that any substitute is checked in the same way and it is clear at time of booking that there may be substitution and show who it may be… Problem solved…

  34. Bloke in Cornwall: You are saying that the drivers can’t have it both ways. I didn’t disagree, I’m just applying the same logic to Uber, who also can’t have it both ways.

    Can Uber theoretically allow substitution? Sure. if they can come up with a way that it is possible in practice. i.e. in the 4 minute period between the driver being booked and when he is supposed to arrive. On Uber’s current business model (which is based on the fancy app that tells you exactly who your driver is, how far away he is and when he will arrive), it isn’t.

    Uber are of course welcome to change their business model, have less control over their drivers in such a way that they are not workers. Or they can abide by the law of the land, like every other cab business. They can’t have it both ways.

  35. Substitution doesn’t work like that. I may be hired for a job based on certain qualifications I possess and that are necessary to carry out that work. I want to allow substitution, to minimise the risk from IR35, but it can only be for someone with the necessary qualifications. I can’t see why Uber couldn’t do the same – sure you can substitute someone, as long as he’s on our approved list (and is therefore suitably vetted).

    Radio cabs (and one-man car operations) do this all the time, the planned car and driver gets snarled up in traffic, so they substitute another.

  36. Chris M: Yep, radio cabs do it all the time. Uber can of course operate exactly the same way.

    But they don’t. Uber’s business model is based upon an extremely stringent set of rules being imposed on the drivers, in order to maintain the quality of service. Uber drivers turn up quicker than traditional rivals exactly because the system identifies an available driver and, in practice, effectively requires them to accept the job and turn up immediately. There’s no time to spend 5 minutes finding a substitute – it’s simply not practical under Uber’s operating guidelines.

    Uber could change that model, and have drivers spend 5 minutes working out who will turn up. Up to them. Until they do…

  37. The IGWB chap reminds me of that Yank who disrupted the boat race a few years ago. Whatever happened to him? But I am going to forward this stuff to my MP and ask him what the Home Office knows about him. May was truly awful in that job, wasn’t she.

    Perhaps someone else might set it out for Guido Fawkes and the Daily Mail… Yank student completes PhD thesis in 2013, stays on in this country with unknown means of support, sets up a trade union, acquires minimal following and campaigns against the University who gave him the PhD and Uber.

  38. @Diogenes – the question is who is sponsoring his visa? Are the union doing it or did he manage to blackmail SOAS into changing their minds on the tier 1.

  39. Manhattan brit – uber don’t define the hours worked, the driver get to choose when they work. Substitution is possible under ubers rules but in a subtly different way… As I have no defined hours I’m free to put any driver I want into my car and tell them to log in as themselves… I’ve substituted myself for another driver and uber are happy (subject to that driver being approved). The software doesn’t care who is online as the driver or how many drivers are on line, if I don’t do any driving for 3 months uber don’t care… Let’s see an employee not turn up for 3 months…

  40. Of course, the whole argument is slewed by this middle definition. Uber drivers are not ’employees’, they are ‘workers’.

    It’s something the European courts have given us.

    “the system identifies an available driver and, in practice, effectively requires them to accept the job and turn up immediately.”

    By ‘in practice effectively’ I assume you mean doesn’t ‘require them’ to turn up. It’s only if the driver accepts the job, which they are at liberty to turn down.

    From Uber’s website:

    “Getting a trip request

    When you’re in your vehicle and ready to receive trip requests from nearby riders, tap GO ONLINE.

    A pulsing horizontal blue bar at the top of your screen indicates your app is actively receiving trip requests.

    Your phone flashes and beeps when you receive a trip request. To accept it, tap anywhere on your screen within 15 seconds.”

    And

    “If you decline a delivery request, that request will be re-assigned to another nearby delivery partner…. We recommend that you only go online when you are ready to accept delivery requests….Also, please note that certain delivery partner promotions require a minimum delivery acceptance rate.”

    The point being that I decide whether to turn the App on in the first place and I decide whether or not to accept a job, notwithstanding that a ‘minimum delivery acceptance rate’ is required for some promotions.

    So compare that to an employee who can decide whether or not they turn up at work in the first place and then, once there can turn down work instructions on occasion if they feel like it.

    Can you name an employee who can work under those terms?

  41. Right of substitution is of course one thing they look at.

    tools of the trade – who provides them? Uber don’t pay for the car.
    in profit on his own account? The longer he works, the better he maintains his car, the quicker he accepts jobs and the better a driver he is…..two Uber drivers can by their own efforts end up with very different incomes in the same time. Two civil servants will get the same pay even if one is slack and the other slacker.
    It costs him if he makes mistakes. Go the wrong way, head in the wrong direction and it’s your petrol and your missed other jobs.
    Choose hours, choose days, choose weeks. Up to the Uber driver.
    Does he WANT to be self-employed? yes
    Is he perceived as part of the Uber workforce? Only by dickhead agitators and employment Tribunals

  42. “Two civil servants will get the same pay even if one is slack and the other slacker.”

    🙂

    Of course, if all this was IR35 (ie, a company in the way), there would be zero chance of this being inside. Bloody useless tribunal.

  43. As usual this is not about workers’ rights and certainly not about consumer choice. It is about (ab)using the legal system to extract rent for vested interests – fees for unions, excess returns for existing taxi drivers and tax for government. The internet continues to break the old model and needs to be used to call out the lies of those that are seeking to preserve it at our expense.

  44. “the system identifies an available driver and, in practice, effectively requires them to accept the job and turn up immediately. There’s no time to spend 5 minutes finding a substitute”

    That’s not true, is it? A driver can go live on the app and then refuse every single job that comes his or her way. They have to turn up immediately only when the job is accepted. If a job is refused the system finds a substitute.

  45. The discussion here seems to be more about “mutuality of obligation” than about substitution.

    Uber is not required to give any Uber driver any particular jobs, or any number of jobs; the driver is not required to accept any. So there is no obligation either way. Once they accept a job it’ll be hard to substitute, but that’s a different test.

    HMRC rather like the substitution test, because they’ve taken the case law test of “Might you be able to send a substitute if you wanted to?” and refined it to “have you actually sent a substitute without getting the end user’s approval”. They find the latter formulation rather better, it being almost impossible to pass (especially on Day 1 of a contract…).

    But it’s not the only test, and from a tax perspective I’d expect the mutuality point to be pretty decisive – which might explain why HMRC aren’t taking the point with Uber.

  46. @Pellinor – Mutuality of Obligation (or MOO – for those who like silly a TLA) is something HMRC don’t really like as they accept it could on the one hand be present in contracts for and of service and on the other it’s possible to have a single day of work that could be considered ’employment’.

    Of course, we shouldn’t forget that this is not an HMRC initiative. a ‘worker’ can be self-employed.

    I

  47. Oh dear, oh dear.
    All this fuckwittedness can be avoided by avoided by any of the schemes which give the citizen a Basic (unearned) Income.Major Douglas and his National Dividends galvanised political debate circa 1918 onwards when he showed that a mechanised factory produced more goods than it could distribute wages, so a National Dividend should be distributed to bridge the gap.Hitler’s finance guru Hjlamar Schact issued Labour Certificates instead of borrowing from the banks (why do we borrow from the banks: they only make the money up?) and put the six million unemployed Germans back to work in ten years and sent them cruising the Mediterranean for their holidays on Kraft durch Freude boats .No wonder Hitler was popular, unfortunately.
    You lot are all living in the slums of laissez faire Britain , with the country people driven off the land by cheap corn with that eighteenth century moderniser’s Thicky Thatcher’s directoire knickers wrapped round your heads.
    All the evidence shows that it is practically impossible to distribute enough spending power to buy all we produce through the payments of private sector employers alone.

  48. We’ve heard it before. It was wrong then. It is still wrong. DBCR, you really ought to read some proper history books

  49. AndrewC – I know they don’t like it, that’s why they try to ignore it as much as they can 🙂

    The courts, on the other hand, seem to put a bit of weight on it.

    Have you followed through HMRC’s new Employment Status tool? Completely ignores mutuality, and narrows substitution right down – it uses the tests as HMRC would like them to be, not as they are.

    it’s not the only one, though. I was reading an IR35 assessment by a well-known provider of such things, and it was full of things like “there is no conclusive evidence of a lack of control, therefore it appears that the end client is able to control the individual and this means the contract is one of employment”. Absence of evidence of absence is evidence that HMRC should get what they want?!? What is this?

    I suspect someone is trying very hard to preserve a 100% record, and never to say “self-employed” if there is the *slightest* risk HMRC might disagree.

  50. Diogenes,
    Some of those “proper history books” that for instance, don’t mention the British Empire Economic Conference in 1932 which set up an Empire Common Market based on Imperial Preference which was so disliked by the US that Churchill was able to kill it off by making its demise an inducement for the US to join WW2. In the event the Japs forced them into the war months after the Americans had sentenced the Imperial Free Trade zone to death in the Atlantic Charter.(Its all on the Net -perhaps you should show some signs that you’ve read some history yourself).
    Another major fact not in the history books nor in the consciousness of British Know Nothing politicians: America closing the Gold window in the early 70’s which led to Opec inflating oil prices (designated in dollars) which led to World Wide inflation .Keith Joseph and the Milk Street insurgents were able to convince dullards of all parties that the inflation was caused by the Unions and Macmillanite post war demand management. Thicky Thatcher took over when Joseph made such a mess of his leadership bid with the infamous Edgbaston speech (read it. please contrive a convincing argument that its writer was not completely mad as Conservative party grandees assumed when advising him to pack it in ).
    Orthodox history also does not record that Thatcher suppressed the Gilberthorpe dossier on Keith Joseph’s abuse of 15 year old boys at Conservative Party conferences. (So that can’t have happened can it?)

  51. Diogenes, Violet Elizabeth Reed resides in a bedsit in Northampton surrounded by empty tin foil rolls.

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