Sean Nesbitt: Uber by numbers – what next for worker status?


The Uber judgment is only the end of the beginning for the gig economy and the debate on worker status. You would need an algorithm to track the implications. Here are some:

3-4: Months for an appeal to get to the Employment Appeals Tribunal. A speedy hearing is possible, but up to four tribunal hearings, starting 22 November, concern cases against other gig economy organisations, including CitySprint and Addison Lee. While each is decided on its facts, we will build a pattern of judgments which may give more certainty by the Uber appeal, and influence the politicians in their reviews.

2-100,000: Uber has said the judgment only affects two claimants. But Uber has around 40,000 drivers and there are many others working under similar industry models. It is true that they are not all engaged on the same terms, and do not work the same patterns. Some will already be (uncontroversially) ‘workers’ through relationships with the taxi firms on Uber. But there are many people working through online platforms, or old economy arrangements, where pricing and work arrangements chime with key features of the Uber judgment.

1.4m: The annual sterling after-tax profit in Uber London’s accounts for 2015.

3.45m: An estimate of the annual sterling contributions at 3% if drivers must be auto-enrolled in pension schemes under UK law. This comes from projected driver earnings based on Uber’s accounts. As the workforce grows and drivers earn more, there are other uncertainties. Should contributions arise on earnings before deducting Uber’s 20% (or 25%) commission? How to account for deductibles like insurance and running costs? Whatever the uncertainties, the marginalised workforce, which typifies gig economy businesses, is a target sector for the government’s auto-enrolment policy.

13m (x2): The estimated annual cost of paid leave based on the projections above. Also the estimated monthly cost of employer national insurance if Uber were judged under tax rules to be an employer. The tax regime is separate to employment, and both have many areas where review is needed. These numbers alone indicate why businesses treat these cases as crucial.

0: The degree of visibility on future government policy to reform laws on tax and employment status. There are, and have been, a multiplicity of reviews: the Cable review of 2014, the planned Taylor Report, a forthcoming Business, Energy and Industrial Strategy Committee (BEIS) study, and separate reviews of IR35 and employment taxation. A unifying, holistic analysis is needed.

Sean Nesbitt is a partner in the employment, pensions and mobility team at international law firm Taylor Wessing