The tribunal is symptomatic of the pitfalls of the “gig economy” when the brave new world of on-demand tech clashes with the legal rights of workers.
Taxi-hailing giant Uber recently paid $100 million (£68 million) to settle a case in California and Massachusetts to keep its drivers as independent contractors. France has also questioned the employment status of its own Uber drivers. In the UK, solicitors Leigh Day are pursuing a claim against the company, claiming the drivers are workers. It will be heard in July. Couriers for restaurant delivery firm Deliveroo are also uniformed but employed as contractors, although it says “riders are free to work with whatever companies they choose outside of Deliveroo”.
Dewhurst says the rise of tech apps and the widespread use of “independent contractor” contracts are a “toxic combination” but an “ideal scenario” for business. “You are able to run a business model that puts all the cost onto the workers. You can hire and fire people at a moment’s notice,” she adds.
“There’s a lot of couriers who don’t earn the national minimum wage. If you don’t have the right to something, your employer is under no legal obligation to give it to you. They’re not going to give it to you out of the goodness of their heart.”
The courier began working for CitySprint in 2011 and came back to the company in 2014. She’s 28, lives in Walworth and has virtually given up on getting on to the housing ladder. She gets regular work but her earnings can fluctuate by as much as £100 a week, making financial planning difficult. “How much you earn is at the discretion of the controller. How you’re treated is at the discretion of the controller,” she explains. “Whether you even keep your job is at the discretion of the controller. There are no laws protecting us.”
The current case took a while to get off the ground but Dewhurst finally snapped over the “Victorian” practices she saw creeping into the workplace and the courier companies treating the workers as “second class citizens”.
She adds: “You become accustomed to the way of working, that is also part of the problem. People become quite institutionalised and think ‘oh it’s OK, it’s the easiest way. I’m just managing to survive this week, I’ll deal with next week later’. People have this hand-to-mouth existence, or they think that ‘this is the way it is’ and there’s no point fighting it.”
The case comes against the backdrop of a big rise in self-employment since the financial crisis.
In the three months to March 2016, there were 4.7 million self-employed, or 15% of the workforce of 31.6 million workers. That’s almost a million more than before the recession in 2008, when there were 3.9 million workers accounting for 13% of overall employees.
While some will be genuine contractors, others will have been shoehorned into bogus self-employment contracts that strip them of their rights. Some couriers disagree with the action. Becca-Lou Hare enjoys the flexibility of the current set-up and warns of job losses in the industry if the quartet succeed. “The courier companies are already competing for business and having to undercut each other to get — or keep — accounts,” she says.
However, IWGB president Jason Moyer-Lee says: “The case is more important than just the couriers. The whole economy is going to head in that direction if we’re not careful. If these people were really independent contractors, the couriers would not be able to guarantee a service to their institutional clients... You’re one bad accident away from financial destitution.”
Simon Rice-Birchall, a partner at law firm Eversheds, says the most obvious solution would be to broaden employment status, but such a move “would prove prohibitively expensive for UK employers”. He adds: “As a result, this issue continues to sit on the ‘too difficult to solve’ pile within Government.”
But Sarah Fraser Butlin, a barrister at the Cloisters chamber representing the couriers, believes the quartet are “obviously workers, and probably employees”.
Even in the event of success, she anticipates a lengthy appeals process on behalf of the companies. “This is one of the most important cases this year in terms of ordinary working people,” she says. “This is a group of individuals who are fundamentally being poorly treated, and we’re not prepared to sit by and watch that.”
