Uber, the Taylor Review, Mutuality, and the Duty to Not Misrepresent Employment Status

Abstract

Do employing entities have a responsibility to not misrepresent the employment status of their staff? This article suggests that recent jurisprudence does create this responsibility. The article starts, first, by discussing the much-awaited Taylor Review, released in July 2017. This purported to address the problems of employment rights and tax in the software driven ‘gig’ economy. Four main groups of Taylor’s recommendations were to relabel employment statuses and write more secondary legislation, reform tax, cut paid holidays, and introduce new ‘soft’ labour rights. These proposals do not address the real issues. Second, this article explains why a test for employment status highlighted by Taylor – ‘mutuality of obligation’ – has not formed part of binding UK Supreme Court jurisprudence since Autoclenz Ltd v Belcher. Third, it discusses what the Taylor Review did not: the problem of misrepresentation of employment status, which has become closely associated with the gig economy. In October 2017, the Supreme Court issued a pathbreaking judgment that changed the requirements for fraud cases, aligning the tests for civil and criminal fraud, and therefore making fraud claims easier. This is relevant because of the very serious finding, in Aslam v Uber BV [2017] IRLR 4, [96] by the Employment Tribunal that Uber provided an ‘excellent illustration...of “armies of lawyers” contriving documents in their clients’ interests which simply misrepresent the true rights and obligations on both sides.’ This raises the question of whether ‘contriving’ to ‘misrepresent’ something enables fraud claims, either by staff who seek employment rights, or by public authorities for tax receipts or social security contributions.

Keywords: Uber, Fraud, Taylor, Dishonesty, Mutuality of Obligation, Bargaining Power, Universal Declaration, Labour, Employment, Rights

JEL Classification: K12, K31, K21, K34, K42