On 19 February the Supreme Court published its decision in the Uber case, thus concluding an argument that started before the Employment Tribunal in 2016.
Despite the lazy and slipshod way in which parts of the media have reported the case, this was not about whether Uber drivers are ‘employees’ nor about whether they are ‘self-employed’. It wasn’t about whether PAYE should be applied. In fact, it was nothing at all to do with tax (though the terms of the judgment may incidentally affect HMRC’s view as to who is supplying what to whom for VAT purposes).
For the record, the drivers are not employees: and they never claimed to be. They are self-employed: and Uber never suggested that they weren’t.
The question in dispute was not whether the drivers were self-employed but whether they were self-employed as ‘workers’. The significance of that is that self-employed ‘workers’ qualify for some (though not all) of the same rights as employees: in particular, entitlement to be paid the national minimum wage, to holiday pay and to ‘whistle-blower’ protection.
The Supreme Court, agreeing with the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal, held that the drivers were indeed ‘workers’ and were therefore entitled to these rights. And, moreover, that they were working all the time they were logged on to the Uber app and holding themselves out as ready to take fares.
Why, if this is not a tax case, are we commenting on it?
Simply this. If you are engaging individuals to work for you, it matters very much from the tax perspective whether those individuals count as employees (in which case you are required to operate PAYE) or as self-employed (in which case you aren’t). You may perhaps use HMRC’s employment status tool to help you decide. And, as far as tax is concerned, that is an end to it.
But what Uber reminds us of is that that is not necessarily the end of it as far as other legal responsibilities are concerned. It is perfectly possible that someone who is plainly not an employee may nonetheless be a ‘worker’ with the kind of rights we have described. Overlook them at your peril.
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