Right to Work in the UK - What Does the Uber Employment Ruling Mean for You?
Following the well-publicised Uber case, the key conclusion from the Employment Tribunal's recent judgment is that their drivers are to be classed as workers.
As immigration lawyers, we are often asked by employers who they should be checking to examine whether they have a right to work in the UK. The answer to this question can be found in section 15 of the Immigration, Asylum and Nationality Act 2006, which states that an employer is liable to a civil penalty if they employ someone who does not have permission to work in the UK. The criminal offence for employing an illegal worker (described in section 21 of the same Act) uses similar language.
Does this mean that Uber now need to check the immigration status of their thousands drivers who, according to the Employment Tribunal, are now workers? The answer - somewhat anticlimactically - is no.
Section 25 of the 2006 Act confirms that 'a reference to employment is to employment under a contract of service or apprenticeship, whether express or implied and whether oral or written'. So, although the presence or absence of an employment contract (also known as a contract of service) will not be definitive, where it is clear that there is no employment relationship, there is no requirement to check that the worker has the right to work in the UK.
Coincidentally, earlier this week the government decided to bring into force provisions of the Immigration Act 2016 which will require local authorities to check that taxi and mini-cab drivers have the right to work in the UK. Those requirements will come into force on 1 December.
While the position regarding employees might appear to be clear, some employers may still decide to conduct right to work checks on workers or other people who are carrying out work in their name, working on their premises or working in tandem with the organisation's employees.
Reasons for Adopting this Approach
As has been highlighted by the Uber decision, the question of whether someone is an employee is ultimately one for the courts.
There may be cases where an organisation enters into an arrangement with an individual which both parties describe as self-employment, but which is held by the courts to be one of 'disguised employment'.In such cases there are obviously tax and employment rights implications, but the organisation could also be liable for a civil penalty of up to £20,000 if the so-called-contractor does not have the right to work in the UK.
A risk-averse organisation might therefore carry out right to work checks on everyone for whom there is even a remote possibility that a court might decide that there is an employment relationship.
Home Office Enforcement Officers issuing civil penalties are unlikely to be interested in whether a particular situation raises an interesting legal question - if they think that the illegal worker might be your employee, then they will issue a civil penalty notice and tell you to raise a formal objection followed by an appeal if you disagree.
This can be very time-consuming and costly, particularly in cases where complex legal arguments need to be raised about whether or not the illegal worker was an employee.If you check the individual's right to work in line with the Home Office's guidance before you engage with them then you will have a statutory excuse, which is a far simpler way of demonstrating to the Home Office that you are not liable for a civil penalty.
Finally, even in cases where it is clear there is no employment relationship and the Home Office have no basis on which to issue a civil penalty notice, an organisation might suffer reputational damage if it is found to have illegal workers either based on their premises or carrying out work in their name.They may wish to carry out checks to guard against this.
Ultimately, the extent to which an organisation carries out additional right to work checks will be a decision based on the number of additional checks which would be required, the organisation's confidence that individuals engaged as workers or on a self-employed basis are not employees, the resources available to challenge civil penalty notices that have been incorrectly issued, and their concerns about reputational damage.