In my recent article published in The Scotsman, “EU Directives Offer Direction – Except When They Don’t”, I noted that it is in the nature of EU Directives to set out principles and values which have to be enacted into legislation of member states.
Directives tend not to be prescriptive on matters of detail but leave that to member states to legislate through their own processes. We saw in that article the difficulty which such an approach causes.
A case regarding the recent decision from the Employment Tribunal in Aslam, Farrar and Others -v- Uber, BV and Others relating to whether Uber drivers are self-employed or not serves to highlight the point being made. The decision in that case turned on a large number of different points but apparent throughout the judgment was an intention on the part of the Tribunal to give effect to what it saw as the underlying purpose of the Working Time Directive.
The Tribunal was bound by an earlier decision of the Employment Appeal Tribunal in Byrne Brothers (Formwork) Limited -v- Baird and Others which held that “the best guidance is to be found by considering the policy behind... [the provision]. That can only have been to extend the benefits of protection to workers who are in the same need of that type of protection as employees stricto sensu – workers, that is, who are viewed as liable, whatever their employment status, to be required to work excessive hours…The reason why employees are thought to need such protection is that they are in a subordinate and dependent position vis a vis their employers: the purpose of the regulations is to extend protection to workers who are substantively and economically in the same position.”
Following and in line with that decision, the London Employment Tribunal in Uber stated at paragraph 114 “it is clear that the critical distinction for community law purposes is between the dependent worker (who is seen as meriting protection) and the independent contractor in business on his own account (who is not).”
This analysis of the strength of bargaining position echoes back to the position in the holiday pay cases where it was held that workers should be paid their commission and overtime pay for holidays taken, even in circumstances where there is no evidence that a failure to do so would stop them taking those holidays. A broad assumption is accorded to status in those cases (that if an employee is not able to maximise payments he will not take his holidays and thus the purpose of the legislation will be defeated) and again in the Uber case a broad assumption based upon status is made in relation to who counts as a genuinely self-employed contractor and who is not.
In the principal holiday pay case, the European Court of Justice made it clear that it did not expect that assumption to be analysed on a case by case basis. The London Tribunal’s decision, however, has merit because there is considerable discussion in the decision about the extent to which drivers were dependent upon Uber and it is clear that the Tribunal did not proceed simply upon an assumption based on a stereotypical view.