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  • 28/04/2017 - Bruno Rodrigues 0 Comments
    The Uber Case: The Hyberbole and the Truth

    On Friday 28 October 2016 the Employment Tribunal issued a judgement which was well reported in the media as having wide ranging implications for self-employed people throughout the country. This article will examine whether those implications really are as far reaching as the press have suggested by examining how the Tribunal decided the case.

    The Facts

    Uber allows customers to book a taxi service through a mobile app. It has been very successful because it has undercut its competitors on price and has been able to do so because its drivers are self-employed contractors rather than full employees. Nineteen drivers took the company to Court arguing that they are entitled to workers’ rights such as the national minimum wage, statutory holiday and sick pay, pension contributions, and the right not to have deductions made from their pay.

    The law

    What makes the situation a little more complex is the fact that the law recognises three broad categories; the employed, workers, and the self-employed. Only the first two are entitled to full workers rights as highlighted above. Employees are the easiest to indentify, they are individuals who work under an employment contract. The second category of worker is broader and a bit harder to define but in essence includes any individual who undertakes work under an employment contract or any other type of contract where there is an element of control between the “employer” and the person performing the work. These include agency workers and short term casual workers, and to repeat because it is important, workers are entitled to the core employment rights and protections.
     Self-employed persons are in business in their own right and are contracted to provide services on a case by case basis or over a period of time for an agreed fee. Self-employed people are in full control over what business they accept and take on and in control of their time management.

    The key legal point here is control. Employees and workers are under someone else’s control (the law used to use the master and servant analogy to explain the issue of control) and are therefore
    entitled to full workers right and privileges. Self-employed people are their own masters and are not therefore entitled to workers rights.

    How the case was decided

    With little surprise control was the key issue in the Tribunal’s decision. There were a number of factors that lead the Tribunal to conclude that Uber drivers are controlled by the company and are therefore not self-employed. These include; the fact that if drivers refuse three jobs they will be blocked from the service for a period of time, the fact Uber interviews and recruits the drivers, the fact Uber controls key passenger information (such as surnames and contact details) and excludes the driver from it, the fact the drivers cannot agree a higher sum of money than that calculated by Uber, the fact that Uber subjects the drivers to a rating system which amounts to a performance management/disciplinary system, and finally the fact that Uber accepts risk of loss which is the drivers were truly self-employed would be on them.

    The Hyperbole and the real situation

    Being a lawyer (and therefore perhaps a natural pedant) I was confounded at the media’s portrayal of this case as having far reaching implications for self-employed people. This is because if you are really self-employed, that is you control what work you accept and set the terms, this case does not affect you. This case does have implications for those who are currently classed as self-employed but are actually carrying on services under the control of a company, as Uber was found to be doing.

    As a final piece of commentary I would imagine Uber will appeal this decision and indeed given that the number of self-employed people is growing this will not be the last such case brought to the Courts. The law in this area will keep on being aware of these issues.

    If this article interested you and you would like to discuss it or any other legal issue, then please do not hesitate to contact us using the contact details on this website.

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  • 28/04/2017 - Bruno Rodrigues 0 Comments
    Open Wifi, Copyright Infringement and the European Court of Justice

    We all make use of open Wifi, and sometimes extravagantly so. Though a recent case from the Court of Justice of the European Union will make you think twice, particularly if you run an open

    Wifi network. The case is called McFadden v Sony Music (C-484/14). Mr McFadden provided free Wifi at his shop as a way of enticing more customers to his premises. Someone however used his open Wifi network to make music that is the copyright ownership of Sony, freely available. Sony managed to trace the infringement back to Mr McFadden’s network and commenced legal proceedings.

    The European Court found that Mr McFadden had been a conduit for copyright infringement. Further the Court found that the provision of free Wifi even though it is not-for-profit is an E-commerce activity, and therefore such providers have to comply with the E-commerce Directive which of course places certain legal obligations. The Court also ruled that for the provision of free Wifi to meet legal standards the networks should be password protected. This is rather counter intuitive as one would imagine free Wifi should be as easy to use as possible.

    So if your business provides free Wifi, and may out there do from cafes and restaurants to retail outlets and office based service industries, you should now take two steps to ensure your free Wifi networks comply with law. Firstly it would be wise to make it a password protected network with the password given on request. Secondly the user should consent to a terms of use agreement which should pop-up as the first window the user opens, which will include clauses to the effect that the user agrees not to use the network for unlawful and inappropriate purposes, as well as standard data protection clauses.

    Written by Bruno Rodrigues. If this article interested you and you wish to discuss it or any other legal issue then please do not hesitate to contact us.

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