Thompsons are preparing a claim for Amazon delivery drivers who may be entitled to more than £10,000 compensation for every year they have driven for Amazon via a Delivery Service Partner (DSP). The basis of the claim is that the drivers in question are employees as opposed to self-employed contractors. This distinction is important because of the numerous rights that come with employee status.
For example, employees are entitled to:
- National Minimum Wage
- Protection from Unlawful Deduction of Wages
- An employment contract
- Protection from retaliation for raising health and safety concerns or whistleblowing
It has been common practice for many years for companies to draft contracts of service with those providing work for them in which they are specifically designated as self-employed contractors with the specific aim of ensuring that the above rights cannot be enforced.
But, is a person a self-employed contractor just because a contract says so?
The Supreme Court case of Uber BV v Aslam [2021] UKSC 5 has finally answered this question. The court is unequivocal in its finding that the terms of a written contract are “not the starting point in determining whether an individual falls within the definition of a “worker” [or employee]”. This is because the rights drivers were seeking to enforce were not contractual rights, but statutory rights.
Regardless of whether the company, or indeed the driver, wished to contract out of these statutory rights, the rights remain intact.
Of course, in most cases, it is a company that tries to contract out of these obligations by drafting a contract in terms which seek to deny the individual the right they would otherwise have as a worker/employee. The court recognises that it would be “inconsistent with the purpose of the legislation to treat the terms of a written contract as the determining factor…[as] to do so would reinstate the mischief which the legislation was enacted to prevent.”
What are the key criteria that make somebody a worker/employee as opposed to a self-employed contractor?
While there is no rigid test, there are certain guiding principles which determine employee status. First, there must be “mutuality of obligation”. This means there must be an ongoing obligation for the worker to carry out, and for the employer to provide, work. Second, there must be a sufficient level of control exercised by the employer over the worker such as to create, in a traditional sense, something akin to a “master/servant” relationship as opposed to a more equal client/contractor relationship. Third, there must be an obligation to provide “personal service” on the part of the employee. This does not mean that it can only ever be the worker who carries out his duties, but his right to substitute himself must be limited. This is defined in Byrne Brothers (Formwork) Ltd v Baird [2002] ICR 667 which held that the threshold is crossed where a worker can substitute not only when they are personally “unable” to carry out the work, but also when they are merely “unwilling” to do the work themselves.
The fluidity of the employee status test is helpfully defined in the case of RS Dhillon and GP Dhillon Partnership v HMRC [2017] TC 05583:
“there is no one test that can determine every case. The process, once the facts and circumstances are determined, is one of evaluation and where mechanical application of the guidance contained in the many decided cases on this topic is to be avoided”.
What does this mean for Amazon drivers?
The Uber decision is of particular importance for Amazon drivers who are, in many respects, in a similar position to Uber drivers:
- Neither has a general right of substitution without recourse to a manager
- Uber and Amazon DSPs have a high degree of control over how, and for whom, their drivers provide their services
- Even though there is theoretically no obligation for drivers to accept work, it is generally accepted that refusing work regularly results in work “drying up”
- Drivers can be sanctioned if work is not carried out to the standards dictated by the company
Amazon DSPs will inevitably resist these claims, perhaps by citing another recent decision, The Independent Workers Union of Great Britain v The Central Arbitration Committee [2021] EWCA Civ 952. This case involved a number of drivers for the company, Deliveroo, who tried to make a similar argument to that of the Uber drivers. Although this case reached the Court of Appeal, the key point of employee status was never fully examined as it relates to Deliveroo drivers. The Central Arbitration Committee (CAC) found that a Deliveroo driver's right to substitute themselves for another driver differentiated them from Uber drivers, citing the "personal service" test as fundamental to a true employment relationship. This position is, however, not binding and is in fact doubted by academics who argue that the theoretical possibility of substitution, or even rare examples thereof in practice, do not automatically fail the "personal service" test.
In any event, Amazon drivers, unlike Deliveroo ones, must address any substitution request for a shift to their manager before it can be actioned. This, we would argue, makes the relationship more like Uber than Deliveroo anyway.
In Uber, the court frames the debate in public policy terms which should guide any analysis of a person’s status (emphasis added):
“It is the very fact that an employer is often in a position to dictate such contract terms and that the individual performing the work has little or no ability to influence those terms that gives rise to the need for statutory protection in the first place. The efficacy of such protection would be seriously undermined if the putative employer could by the way in which the relationship is characterised in the written contract determine, even prima facie, whether or not the other party is to be classified as a worker. Laws such as the National Minimum Wage Act were manifestly enacted to protect those whom Parliament considers to be in need of protection and not just those who are designated by their employer as qualifying for it.''
It is our view that Amazon DSP drivers are not self-employed contractors. That’s why we’re supporting Amazon drivers bringing claims to ensure they can access the same benefits and protections offered to employees. If successful, Amazon delivery drivers across the UK may be entitled to over £10,000 in compensation.
Joining the claim is straightforward and only takes a few minutes. You don’t need to provide any documents like tax returns to find out if you can join the claim.
Please click here to join the claim or contact us on 07395 888 280 for a free consultation.
