Self-Employed Contractors

The issue:

The UK’s whistleblowing law, the Public Interest Disclosure Act 1998 (PIDA), sits in employment law but currently self-employed and many contract workers who raise concerns are not protected.

PIDA has a wider definition of worker than in most employment rights, but it has not been updated to take account of modern working practices. The gig economy has blurred many traditional divisions between many “self-employed contractors” and “workers” – from delivery drivers to plumbers. This area of law needs urgent clarification.

Read Protect's draft Whistleblowing Bill

Case study: Uber

Cases which test the concept of worker and self-employed contractors, highlight why reform of UK whistleblowing legislation is needed.

In February 2021, the Supreme Court dismissed Uber’s claims that their drivers were self-employed contractors rather than workers. Former Uber drivers James Farrar and Yaseen Aslam took Uber to tribunal claiming they worked for Uber, while Uber argued their drivers were self-employed and they were not responsible to pay minimum wage or holiday pay. The Supreme Court ruled that Uber as a company exercised a large degree of control over the drivers’ activities which meant they could not be considered self-employed contractors, making them workers.

Uber drivers are now entitled to basic statutory rights such as working time limits, national minimum wage and a remedy for unfair treatment for whistleblowing. It is unclear whether the judgement will apply widely to other gig economy workers (e.g. other delivery drivers in other companies, freelance workers etc).

Taylor Review

The Government’s 2017 Taylor Review (formally called Good work: the Taylor review of modern working practices), into the gig economy proposed a number of changes in the way the law looks at employment status:

The review called for legislation setting out clear legal tests for worker status rather than relying on case law generated by the courts. The report says: “We believe there is merit in outlining in primary legislation the high-level criteria which need to be met… employment statuses should also be distinct and not open to as much interpretation as currently.”
The review suggests replacing the category of “worker” with “dependent contractors”, to better reflect the reality of modern work. Individuals who fall into this category would receive employment protection including whistleblowing rights.
The review also suggested legislation should more clearly define what ‘control’ means, rather than leaving it to the courts to decide and that it should look beyond “supervision of day-to-day activities”.

Protect says

Self-employed workers and contract workers should both have whistleblowing protection. Without a remedy if they speak up and are victimised, there is a risk that these workers will keep silent: public interest wrongdoing concerns may not be brought to light, or the risks not addressed until it is too late.

It is unfair that many contractors and self-employed workers carrying out the same tasks as many workers have fewer employment rights.

Protect’s draft bill would widen the scope of who is protected to both self-employed and contract/dependent workers.

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