1400 Amazon drivers have launched a bid for employment rights. The employment tribunal case comes at a time when highly skilled solo self-employed freelancers are finding it harder to be truly independent without companies forcing them into IR35 or being wrongly targeted by HMRC as disguised employees. The lines between the gig economy and the knowledge freelance economy are at risk of getting blurred in the UK and across Europe.
Employment experts have responded to the news that 1,400 Amazon “self-employed” drivers are launching a claim for employment rights. The case will be heard by a tribunal and could have a wider impact on the UK’s solo self-employed.
What are Amazon drivers claiming?
The Employment Tribunals case document says that over 1,400 individual claims have been presented to the Tribunal by drivers who deliver Amazon parcels. Those claims are for holiday pay, national minimum wage, the right to employment particulars, breach of contract and unauthorised deductions from wages.
Self-employed? Employee or Agency worker?
The claims are brought against Amazon and several Delivery Service Providers (DSPs). The drivers claim that they are, or were, an employee or a worker of Amazon and/or the DSP for the purposes of the Employment Rights Act 1996, and workers for the purposes of the Working Time Regulations and the National Minimum Wage Act 1998.
Claimants claim that they are, or were, agency workers pursuant to Regulation 36 of the Working Time Regulations and Section 34 of the National Minimum Wage Act. As a final alternative, the Claimants claim that they are, or were, a worker of Amazon and/or the relevant DSP for the purposes of section 35 of the National Minimum Wage Act.
We all need a holiday, but who is footing the bill?
Seb Maley, CEO of employment status advisory, Qdos, commented on the development:
“These tribunals in the gig economy are coming thick and fast. It just goes to show how much confusion there is around employment status among gig economy workers. These drivers aren’t convinced they’re self-employed and want employment rights. Amazon has a different view and claims they’re genuinely self-employed, meaning they have no obligation to provide holiday pay.
“Cases like these have the potential to get very messy and extremely expensive for all parties involved. Over the years, there have been similar issues at Uber, Deliveroo and many other gig economy platforms. The key to solving this problem is rigorously assessing employment status from the outset, ensuring all parties are in agreement before the working relationship starts.”
This case could be a catalyst for many other self-employed workers following suit, cutting out the middleman and attempting to secure employment rights from the business at the top of the chain.
Julia Kermode, founder of IWORK
Julia Kermode, founder of IWORK – a body that champions gig workers – is not completely convinced the case will go as the drivers hope:
“This case may not have gone the drivers’ way yet, but the fact that it will be heard is huge news. Lots of businesses outsource to suppliers who engage self-employed workers. This case could be a catalyst for many other self-employed workers following suit, cutting out the middleman and attempting to secure employment rights from the business at the top of the chain.
“It also casts a moral spotlight on the supply chain itself. When margins are squeezed, many suppliers can’t compete and have no choice but to cut costs. A self-employed workforce can save significant overheads, which is financially attractive, but these people have no statutory protections such as paid holiday and minimum wage. And if they aren’t genuinely self-employed – able to decide how, where and when they work – then it’s exploitation. Simple as that.”
“Horrendous mess”
It appears many of the drivers in evolved in the claim may be using limited companies, according to Dave Chaplin of IR35 Shield.
“If that is the case,” he states in a recent LinkedIn post, “where were the IR35 checks under Chapter 10 ITEPA? That is a gigantic mess waiting to happen.
Chaplin continues, “Will HMRC step in and align themselves to the workers, or Amazon? Who would be the “deemed employer”? Horrendous mess.”
Chaplin says in his post that he predicts that Amazon is engaging with a delivery company, “not to provide people but to deliver parcels.”
“The answer will be in the contract for that one,” he says. “But, the delivery company are probably hiring “workers”, and would be unlucky if they get stuck with “employee”.
Chaplin goes on to explain:
“Paragraph [61] “The case for employee status is much harder to establish than the case for worker status.”
“Sure, if only there were some binding legal authority that gave us more direction on this, and how to measure the extent, eh? I have some prepared pleadings on this topic, all boxed up, ready to deliver, personally.”
Blurred policy lines happening across Europe
New labour policies are brewing in other parts of Europe, such as the Netherlands, that will have serious consequences for people who choose to work on a freelance or temporary basis. There is likely to be a ban on zero-hour contracts in the Netherlands, and a new rule making it compulsory for the self-employed and freelancers to take out disability insurance should they fall ill.
Dustin Robinson, the Head of Marketing and Community for Malt in The Netherlands offered his insights to The Freelance Informer about the proposed legislation:
“We hope that all parties involved will be able to see a clear difference between the regulatory needs and concerns around gig work versus knowledge work. Confusion about the different needs of these two groups could result in inaccurate news coverage and/or bad legislation.”
Malt is keeping a close eye on the rules around “imbedding” as there appears to be “a lack of clarity on what exactly they entail, which can create problems for both freelancers and the businesses that hire them,” says Robinson.
“Many fully legitimate freelance roles, such as interim management for maternity leave, could technically fall under this category if the legislation is poorly crafted. We hope that the final version of the law provides not only clarity, but takes the practical needs of businesses into account while recognizing the flexibility, speed, and value that freelancers provide,” he says.
All these self employed people wanting employment rights, go and get paid employment.
The rest of us are genuinely trying to be self employed, or employed by our limited companies.