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Employment Status: The European Court Clarifies Who Counts As A Worker Under EU Law In Gig Economy Ruling – Employment and HR

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The European Court of Justice has ruled that it’s up to
national courts to make decisions about employment status, but that
a courier working for Yodel in the UK appeared to them to have been
correctly classified as self-employed, given the latitude he had
over accepting jobs, working for competitors, providing substitutes
and deciding his work schedule. The crucial factors were
independence and subordination.

Background

There have been multiple cases about the employment status of
individuals working in the gig economy throughout Europe, but the
European Court of Justice has not, until now, been called upon to
address the issue of whether they are ‘workers’ under EU
law directly.

This case was referred by the Watford Employment Tribunal. It
involved a Yodel parcel courier who argued that, although he had
signed a contract stipulating that he was a self-employed
independent contractor, he was in fact a ‘worker’ for the
purposes of the Working Time Regulations 1998 (WTR). If successful,
this would have entitled him, amongst other things, to paid
holidays.

The claimant chose to work exclusively for Yodel but was free to
deliver parcels for third parties at the same time. He was able to
appoint a substitute, if they had appropriate skills and
qualifications. He did not have to accept any parcels and could set
a limit on the number of parcels he was willing to deliver. He used
his own vehicle and mobile phone but had to use Yodel’s
handheld delivery device (on which he received training). Parcels
needed to be delivered between certain hours, but the courier could
use his discretion over the exact timing, route and order in which
deliveries were made.

The Watford Employment Tribunal observed that the WTR define a
worker as someone who undertakes to do or perform work personally
yet the Yodel couriers were not in fact required to deliver all the
parcels personally because they had the right to ask someone else
to do the deliveries for them.  Consistent with the
Supreme Court decision in Pimlico Plumbers, such an individual
could not be a worker for the purpose of UK
law.  However, the Tribunal asked the European Court of
Justice for a ruling on whether the WTR personal service
requirement was compatible with the requirements of the Working
Time Directive (WTD). In the event that the Court decided that
Yodel couriers should be classified as workers for the purposes of
the WTD, it also asked for guidance on how to calculate working
time in a situation where couriers could be delivering parcels for
multiple businesses at the same time and organising their
activities as they preferred.

European Court of Justice decision

The European Court of Justice (surprisingly) issued a
‘reasoned order’, rather than a judgment. This is still a
binding decision, but it means that the Court considered the legal
issues to have already been decided by its existing case law, or
that the answers involved no reasonable doubt.

The European Court of Justice noted that the WTD does not define
the concept of ‘worker’ but that the Court has previously
decided that the concept has an autonomous meaning specific to EU
law. They also noted that being classified as an independent
contractor under national law does not prevent a person being
classified as an employee within the meaning of EU law, ‘if his
independence is merely notional, thereby disguising an employment
relationship’.

The European Court of Justice ruled that the WTD does not cover
independent contractors who are afforded the discretion to:

  • provide substitutes;

  • choose whether or not to accept tasks or unilaterally set the
    maximum number of those tasks;

  • provide services to any third party, including direct
    competitors: and

  • fix their own working hours within certain parameters and
    tailor their time to suit their personal convenience rather than
    solely the interests of the putative employer;

provided that:

  1. the independence of the contractor does not appear to
    be fictitious; and

  2. it is not possible to establish the existence of a relationship
    of subordination between that person and his putative
    employer.

On the facts of this case, the European Court of Justice
concluded that it was ultimately for the referring national court
to decide if the Yodel courier should be classified as a worker
because it requires an assessment of all the circumstances, but
they pointed out that:

  • Yodel couriers appeared to have a ‘great deal of
    latitude’ in relation to Yodel.

  • The court should examine the consequences of this and ask
    whether, despite all this apparent discretion, the courier’s
    independence is merely notional.

  • In addition, the court would need to see if it was possible to
    establish a subordinate relationship.

  • Yodel only had limited control over the choice of any
    substitute. It could not give precedence to its own
    preferences.

  • The courier had an absolute right not to accept the tasks
    assigned to him and could himself set a binding limit on the number
    of tasks which he was prepared to perform.

  • He could also work for direct competitors at the same
    time.

  • Although it was true that deliveries needed to be made during
    specific time slots, that was inherent in the very nature of a
    delivery service.

  • In the light of all those factors, the courier’s
    independence did not appear to be fictitious and there did not
    appear to be a relationship of subordination between the courier
    and Yodel.

What does this mean for employment status in the UK?

There has been a steady stream of claims in the UK in recent
years, particularly from workers in the gig economy who have been
arguing that they have been misclassified as self-employed when
they should be treated as ‘workers’ for employment rights
purposes. The trend has generally been for gig economy workers to
succeed in showing they have worker status, although the Court of
Appeal decision in the Aslam v Uber case was
split 2:1 on this point, and the Deliveroo case is a notable
exception to this.

The UK courts have tended to focus on three key issues when
determining whether an individual has ‘worker’ status:
substitution, control and whether the individual can really be said
to be running their own business of which the putative employer is
a customer.

On the current UK tests, if the individual has an unfettered
right to appoint a substitute, then they are not a ‘worker’
(this was the decisive factor in the Deliveroo case where the riders were
found to be self-employed). The Supreme Court in Pimlico Plumbers affirmed that the
‘sole test’ in deciding whether someone was a worker was
whether there was an obligation of personal performance, and any
other test would be an ‘inappropriate usurpation’ of the
sole test. There may be other cases (of which Pimlico Plumbers was
one) where it is relevant to question whether the ‘dominant
feature’ of the contract was personal performance. Whether
there was any express right to appoint a substitute, and if so the
extent of any fetters on that right, may be decisive.

In Pimlico Plumbers the absence of an express right of
substitution, combined with the degree of control exercised by the
putative employer and the conclusion that the individuals were not
really running their own business, proved decisive in finding that
the individuals were classified as ‘workers’. Similar
factors were relevant in the Uber case.

Given the very broad right of substitution, the limited control
exercised over them by Yodel, and their ability to provide services
for multiple parcel delivery companies simultaneously, there seems
little doubt that the Yodel couriers are not workers for the
purposes of UK law.  This will be welcome confirmation
for gig economy operators that the EU law angle that those pursuing
such claims had hoped to fall back on has been largely eliminated.
The question of ‘independence’ and ‘subordination’
may become more of a focus in future UK cases (we may find out when
the Supreme Court considers the Uber case on 22 and 23 July this
year), but we expect that it will become harder for these sorts of
worker status cases to succeed where there are clear rights of
substitution and a high degree of latitude in the operation of the
working relationship.

B v Yodel order of the European Court of Justice
available here.

Firm: Lewis Silkin
LLP

Originally published 07 May 2020

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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Mable brings gig economy thinking to aged care, just in time for COVID

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This controversial app risks putting the vulnerable in charge of the vulnerable. So why isn’t News Corp writing about it?

(Image: Mable, AAP)

This is the second instalment of a series on aged care app Mable. Read part one here.

Online carer platform Mable has benefitted from the advertising and marketing support of Murdoch-owned media outlets in what amounts to a remarkable blurring of editorial lines.

As we’ve reported, Mable failed to supply emergency staffing for the COVID-affected Newmarch aged care facility just days after receiving a multimillion-dollar contract from the federal government to do just that. It has also been criticised by experts for its platform, which provides a kind of carers’ matchmaking service. It’s a hands-off model that risks putting the vulnerable in charge of the vulnerable.

Want to keep reading about how Mable works?

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The promise and pitfalls of the gig economy

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860,000 Americans filed for unemployment insurance again in September, many of them gig workers driving for Uber and Lyft or finding work via TaskRabbit, PostMates, or other app-based services. The promise of the gig economy was flexibility and autonomy, but those very characteristics have made workers vulnerable during the pandemic and as we’ve seen in recent years, exploitation by the companies themselves. Boston College sociologist JULIET SCHOR believes that the gig economy has never lived up to its promise and, in fact, has made things more inequitable, creating a “servant economy” for the privileged. We’ll talk to Schor about her new book, After the Gig: How the Sharing Economy Got Hijacked and How to Win It Back.

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Gig Economy Company Launches Uber, But for Evicting People

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Civvl gig economy eviction website

Screenshot from Civvl.com

“SINCE COVID-19 MANY AMERICANS FELL BEHIND IN ALL ASPECTS,” reads the website copy. The button below this statement is not for a GoFundMe, or a petition for calling for rent relief. Instead, it is the following call to action, from a company called Civvl: “Be hired as eviction crew.” 

During a time of great economic and general hardship, Civvl aims to be, essentially, Uber, but for evicting people. Seizing on a pandemic-driven nosedive in employment and huge uptick in number-of-people-who-can’t-pay-their-rent, Civvl aims to make it easy for landlords to hire process servers and eviction agents as gig workers.

Helena Duncan, a Chicago-based paralegal who also participates in housing activism, saw a Craigslist post from Civvl while searching for jobs. The ad alarmed her. 

“It’s fucked up that there will be struggling working-class people who will be drawn to gigs like furniture-hauling or process-serving for a company like Civvl, evicting fellow working-class people from their homes so they themselves can make rent,” she told Motherboard. 

In its Craigslist ads, posted across the country, Civvl explains the opportunity plainly: “There is plenty of work due to the dismal economy.”

“Unemployment is at a record high and many cannot or simply are not paying rent and mortgages,” the ads state. “We are being contracted by frustrated property owners and banks to secure foreclosed residential properties.”

Civvl aims to marry the gig economy with the devastation of a pandemic, complete with signature gig startup language like “be your own boss,” and “flexible hours,” and “looking for self-motivated individuals with positive attitudes:” “FASTEST GROWING MONEY MAKING GIG DUE TO COVID-19,” its website says. “Literally thousands of process servers are needed in the coming months due courts being backed up in judgements that needs to be served to defendants.”

 The website also featured a quote, attributed to The New York Times: “Too many people stopped paying rent and mortgages thinking they would not be evicted.” A search reveals this phrase hasn’t appeared in the Times. The company did not respond to requests for comment or a source for this quote, but the mention of the Times has since disappeared from its website.

The company, at first glance, appears to be some kind of _Nathan For You-_esque prank: siccing precarious gig jobs onto vulnerable people. But Civvl is connected to a larger—and real—gig economy company called OnQall, which describes itself as an app that provides “on-demand task services to non-urban communities beyond main city areas.” OnQall is the developer behind other, more believable TaskRabbit-esque apps, like LawnFixr, CleanQwik, and MoveQwik. Given the fact that Civvl is advertising all over the country and that OnQall, though not popular, does exist, it seems as though Civvl actually is an attempt to simplify the process of evicting people who cannot pay their rent during a pandemic.

To put the business of OnQall more simply, Ice-T said in an apparent Cameo video, “It’s basically Uber, for side hustle jobs. You dig it?” Ice-T’s representative did not respond to a request for comment. Another vertically-shot selfie video from Omarosa Manigault Newman, offers generic words of congratulations to OnQall’s CEO, Paul Francis, on his app. 

“Mrs Newman is NOT associated with Civvl,” A spokesperson for Omarosa told VICE. “That video is certainly a cameo and should be credited as such.”  

The Civvl app lacks the high-profile Cameos from Ice-T or Omarosa. In negative reviews in the Google Play and App Store, users complain about a hidden $35 enrollment fee to access the platform, and a lack of work once signed up.

At the time of writing, Civvl and OnQall did not return requests for comment, but did appear to block the author’s IP address from visiting OnQall.com. 

There is a federal ban on evictions, declared by the CDC, but landlords are still attempting to press on. There is a penalty for violating the ban, which can include a combination of fines and jail time. Civvl did not respond to a question about how the company ensures evictions are legal, though based on the Terms of Service, it appears to pass all risk onto the companies using its platform, stating that it simply “provides lead generation to independent contractors,” and does not actually carry out the work itself.  

A recent CNN report showed the heartbreaking reality of working in evictions. Francisco Muñez, a mover for a landlord in Houston, cries as he empties an elderly woman’s apartment. “Maybe today it’s her. Tomorrow it’s me,” he told the reporter. 

The Metropolitan Tenants Organization in Chicago operates a hotline to support tenants dealing with difficulty in paying rent, as well as landlords illegally locking them out of their apartments. 

“We’ve seen more than double the amount of calls to our hotline since the beginning of March, than we did during the same time period last year,” Philip DeVon, an eviction prevention specialist at MTO, told VICE. They’ve received over four hundred calls regarding illegal lockouts alone. 

“It’s very dishonest,” DeVon said of Civvl. “It’s like, ‘Oh, don’t call us a hitman. We don’t pull the trigger! We just connect you with someone who’s willing to.'”

Even though there is a moratorium from the CDC on evictions, DeVon said, tenants may not be aware they need to sign a declaration form to prevent this. There are many ways, he explained, that landlords will use legalese or a lack of information to take advantage of tenants. In general, he recommends documenting all interactions with the landlord, and if they did not occur on email or text message, to write them down, and then send them to the landlord to confirm that’s what happened.

“One thing we know just from experience, especially with housing: just because something is technically legal, doesn’t by any stretch mean that it’s right, ethically speaking,” DeVon said. “With this particular company, it sounds like they’re doing what landlords often do, which is prey upon a lack of knowledge and information about people’s rights.” 

“Legal court evictions are on hold,” Javier Ruiz, a counselor on the Tenants’ Rights hotline for MTO, told VICE. “But most of these management companies, they’re not necessarily evicting people through courts. They’re just evicting people through pressure. So that’s why I see a company like [Civvl] would be coming in.” 

The Autonomous Tenants Union, another Chicago-based organization, provided a statement to VICE. The statement noted a surge since March with requests for help from renters, some who are dealing with illegal eviction threats, and others facing legal eviction due to the loopholes in both local and federal eviction bans. 

“Civvl’s marketing language that portrays underwater tenants and homeowners as scammers looking for an excuse to skip out on their obligations is not only factually inaccurate, but plays into a general victim-blaming PR myth perpetuated by the real estate industry to justify their exploitative business practices.” 

For a company like Civvl to merely exist, the ATU said, is “a frank admission that our housing system is predicated on violence.” 



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