The Uber decision, musicians and the gig economy
ISM Head of Legal and Compliance, John Robinson, explains the Supreme Court's decision in the Uber case and how it might impact musicians.
Victory for Uber drivers in the Supreme Court
A case brought by some Uber drivers against Uber reached a stunning final outcome when the Supreme Court handed down its decision on 19 February this year. In Uber v Aslam,the claimants had argued that they were entitled to receive annual paid leave and be paid at least the national minimum wage. Uber argued that the drivers were self-employed contractors, and such rights did not apply.
Before reaching the Supreme Court, Uber had lost all three cases previously brought against it, in the Employment Tribunal, the Employment Appeal Tribunal and at the Court of Appeal. Uber appealed to the Supreme Court.
The Supreme Court unanimously dismissed the appeal, and upheld the decisions of the lower courts that the claimants should be considered workers, and were therefore entitled to a number of rights and protections not available to the self-employed. Uber announced on 17 March that it intended to implement key aspects of the decision as soon as possible.
What are rights for workers?
While not as strong as the rights and protections for those considered in law to be employees, rights for workers are nevertheless highly valuable, and include, among other things, the right to:
- a written statement of employment particulars from day one (basic terms and conditions of employment)
- an itemised pay statement
- protection against unlawful deductions from pay
- be paid the National Minimum Wage
- receive paid annual leave
- rest breaks and a 48-hour week
- employer pension contributions to auto-enrolment scheme
- be accompanied at disciplinary or grievance hearings
- protection from victimisation for being a union member
- protection from discriminations set out in the Equality Act 2010
- reasonable adjustments for disabled workers
- protection against detriment for many circumstances including exercising rights as a part-time worker, exercising rights under the Working Time Regulations or health and safety legislation, making protected disclosures (whistleblowing).
Effects for the gig economy
This outcome is considered by many as a crucial development in the fight for rights for people working in the ‘gig’ economy, and shows that the highest court in the land believes that flexibility within the workforce must not be achieved at the expense of fundamental rights of those working within it. The Court’s decision also recognised the reality of the level of control exercised by Uber over its drivers in a large number of ways, and found these were absolutely incompatible with the self-employed status claimed by Uber.
Significantly, the Supreme Court also found that it was not correct simply to consider the form of contract or agreement by which people were engaged to work when seeking to decide the employment status of individuals: the correct approach is ‘to consider the purpose of the relevant employment legislation. That purpose is to give protection to vulnerable individuals who have little or no say over their pay and working conditions because they are in a subordinate and dependent position in relation to a person or organisation which exercises control over their work.’
Implications for musicians
The ISM has long argued that the reality of an employment relationship cannot be determined solely by the written agreements between the individual and the engager/employer. The Supreme Court’s decision and its reasoning is therefore most welcome.
This decision potentially has application to many musicians, especially those working within education, where the relations between all parties can be complicated.
All ISM members have access to our specialist in-house legal team to help with any legal issue arising from their career in music, including contracts, copyright, unpaid fees and more.
We encourage any member with questions or concerns about their employment status to get in touch at [email protected].