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 Post subject: Re: Self employed or not
PostPosted: Thu Mar 11, 2021 8:03 pm 
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The second article was from a rep of the GMB.

https://content.yudu.com/web/43sy4/0A43 ... gin=reader

In the article the GMB rep describes a firm that he believes isn't affected by the findings in the judgement.

He describes a firm that is owned by a significant number of owner drivers, a mixed fleet non profit making firm and a firm that doesn't take a commision on app/account work. He believes that the judgement hasn't changed anything for drivers working with firms as described.

Let's look at the Justices reasons for classing Uber drivers as workers.

1. Control over fares/prices.
2. Control over contracts, written or unwritten.
3. Control over ability to accept or reject any job, and receiving full job details at the time of job offer. Is the driver in a position of subordination to the operator. What happens to a driver who continually cherry picks radio work?
4. Control over the way drivers deliver the service. What happens if a driver goes a different way than the datahead might suggest? Are drivers given a star rating?
5. Control over customer information. Are drivers given contact details of the customer? What happens if the driver says to a customer here's my mobile don't bother ringing the firm next time?

Let's put those reasons, and remember these are just the significant ones the Justices picked out of the larger number of reasons that the Employment Tribunal mentioned, against the firm that the GMB rep described.

1. Whilst any local hackney fares are controlled by council, out of town hackney fares and all PH fares are controlled by the firm. Is that any different from Uber?
2. It's fair to assume that the owners of the firm do have a say over the contracts and working agreements of the company, but that doesn't apply to the owner drivers and journeymen on the firm that aren't full members. Are they any different than Uber drivers in this regard?
3. Does that firm allow drivers to cherry pick radio work? Should an account/app customer complain about an overcharge does the firm pay the money back and reclaim from the driver, or does the firm tell the customer to take it up with the driver? If they take action against cherry picking drivers and repay account/app customers direct, and reclaim any money from drivers, then they are acting exactly the same way as Uber act.
4. Does the firm allow drivers to take whatever route they choose? Is the data despatch system owned by the firm, and who bears the financial loss if a driver doesn't follow a route suggested on the data head? Does the firm have a star ratings system inbuilt into the data despatch system? If the firm doesn't allow drivers to deviate from a route without the threat of financial penalty, and the firm has a star rating system, then they are acting in the same way as Uber.
5. Does the firm allow drivers to have the full details of customers, especially app/account customers? Do drivers get to see the invoices to those customers for the app/account work they have undertaken? Does the firm allow drivers to offer their services to those customers privately, bypassing the firm? If the drivers don't see the invoices or are forbidden to contact the firm's customers independently, then they are acting in the same way as Uber.

And by acting they same way as Uber they are acting outside of employment law. [-X

However please please don't take my unprofessional view on this, take the view of the many employment professional/lawyers who have spent the last month dissecting the judgement. They can be found via google. :D

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 Post subject: Re: Self employed or not
PostPosted: Fri Mar 12, 2021 1:22 pm 
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Good analysis =D>

Just had a quick look at the articles, but the NPHTA piece by Mr Toy seems more about the economics of the labour market rather than the legal judgement, so even to that degree it's a tad hypocritical, because I can't really see a whole lot of difference between Uber and the mainstream trade in that regard.

As for Mr Peters and the GMB, he's bang on as regards that many circuits etc are a bit more complex than the Uber scenario, where there was just the single operator on the one hand, and a uniform mass of drivers on the other hand. But, as you rightly say, while a member of a co-op or similar set-up will be a bit different from an Uber driver, as regards the average owner-driver on a circuit I can't really see a whole lot of difference, moreso as regards journeyman drivers.

(And as far as I can make out, Mr Toy of the NPHTA is just an owner-driver on a fairly standard circuit, so why he'd be banging the drum for the circuits I'm not sure, but maybe that's why he's sidetracked slightly on to the purely labour market stuff.)

Anyway, with too much time on my hands think I'll keep my detailed thoughts to myself, because we'd be in to War and Peace territory, and I'd be accused of allsorts :-o


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 Post subject: Re: Self employed or not
PostPosted: Fri Mar 12, 2021 3:36 pm 
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StuartW wrote:
Good analysis =D>I'd be accused of allsorts :-o

One too many and you'll turn Bertie.

https://www.youtube.com/watch?v=bE78Dy1QDYQ

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 Post subject: Re: Self employed or not
PostPosted: Fri Mar 12, 2021 4:53 pm 
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I think that before too long HMRC will be making decisions as to whom is self employed and who is employed / employee. And any philosophical argument will be in vain. So it goes.
For certain NI contributions will be increasing whether self employed or not...

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 Post subject: Re: Self employed or not
PostPosted: Fri Mar 12, 2021 6:33 pm 
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jimbo wrote:
I think that before too long HMRC will be making decisions as to whom is self employed and who is employed / employee. And any philosophical argument will be in vain. So it goes.
For certain NI contributions will be increasing whether self employed or not...

Pretty certain HMRC are licking their lips when looking at trades like us, and it wouldn't surprise me one bit if at some time in the near future operators had to pay employers contributions for drivers on their circuits. :shock:

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 Post subject: Re: Self employed or not
PostPosted: Sat Mar 13, 2021 8:00 am 
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Sussex wrote:
jimbo wrote:
I think that before too long HMRC will be making decisions as to whom is self employed and who is employed / employee. And any philosophical argument will be in vain. So it goes.
For certain NI contributions will be increasing whether self employed or not...

Pretty certain HMRC are licking their lips when looking at trades like us, and it wouldn't surprise me one bit if at some time in the near future operators had to pay employers contributions for drivers on their circuits. :shock:

Employers do get a national insurance allowance these days. I believe that it is £4000. So they will need quite a few well paid employees before they have to actually pay anything, we don't have to pay anything.

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 Post subject: Re: Self employed or not
PostPosted: Sat Mar 13, 2021 8:25 am 
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My situation is that I don't have a data head fitted in cab. I would just phone him to cover a job. He can refuse if he would rather sit on the rank. Someone wrote if you supply the tools to do the job then there classed as workers.
Then surely most london hackney carriage drivers would be employed
Because most of them rent a cab full insuranced and maintained and do work off different apps.


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 Post subject: Re: Self employed or not
PostPosted: Sat Mar 13, 2021 9:44 am 
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perry wrote:
My situation is that I don't have a data head fitted in cab. I would just phone him to cover a job. He can refuse if he would rather sit on the rank. Someone wrote if you supply the tools to do the job then there classed as workers.
Then surely most london hackney carriage drivers would be employed
Because most of them rent a cab full insuranced and maintained and do work off different apps.

There is a difference between renting a car under a rental agreement and just giving someone money to use their car. Also in this particular case it was said that the driver paid a percentage of their take which is more of a commission. Before all our drivers became employees they rented their cars from us under a rental agreement and the rent was X pence per mile. So the more miles they drove the more they paid and assuming that all the miles were work miles then the more they earned. We did not take any share of the money they took and we paid VAT on the money they paid in rent.

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 Post subject: Re: Self employed or not
PostPosted: Sat Mar 13, 2021 11:15 am 
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Sussex wrote:
jimbo wrote:
I think that before too long HMRC will be making decisions as to whom is self employed and who is employed / employee. And any philosophical argument will be in vain. So it goes.
For certain NI contributions will be increasing whether self employed or not...

Pretty certain HMRC are licking their lips when looking at trades like us, and it wouldn't surprise me one bit if at some time in the near future operators had to pay employers contributions for drivers on their circuits. :shock:


it happened where i lived, an owner-driver got fed up seeing jockeys work cars to death 24/7 so told HMRC who swooped on the 2 firms in town and suddenly all the "self employed" drivers either vanished or became PAYE

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 Post subject: Re: Self employed or not
PostPosted: Sat Mar 13, 2021 11:16 am 
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Quote:
There is a difference between renting a car under a rental agreement and just giving someone money to use their car. Also in this particular case it was said that the driver paid a percentage of their take which is more of a commission. Before all our drivers became employees they rented their cars from us under a rental agreement and the rent was X pence per mile. So the more miles they drove the more they paid and assuming that all the miles were work miles then the more they earned. We did not take any share of the money they took and we paid VAT on the money they paid in rent.


great fiddle for the car owners when done the sneaky way, 30 out on rent at £300+ per week soon adds up over 10 years

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 Post subject: Re: Self employed or not
PostPosted: Sat Mar 13, 2021 11:34 am 
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Chris the Fish wrote:
StuartW wrote:
Good analysis =D>I'd be accused of allsorts :-o

One too many and you'll turn Bertie.

https://www.youtube.com/watch?v=bE78Dy1QDYQ

Well spotted =D>

Someone on here recently accused me of being supercillious and of rodomontading (no, me neither) because of stuff like that, but I'll take your point in the spirit intended. You ba$tard :lol:

Never mind, though, nothing that I won't get over after a couple of counselling sessions 8-[

But the Bertie advert definitely one of those that you can immediately tell isn't recent because of the hairstyles alone 8)


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 Post subject: Re: Self employed or not
PostPosted: Sat Mar 13, 2021 11:38 am 
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Sussex wrote:
Read two articles today in PHTM in relation to the Supreme Court judgement and the effect it may or may not have on sections of the trade.

Read the two pieces yesterday, and largely agree with your analysis.

Couldn't help noticing this from Mr Toy early in his piece:

Quote:
The definition of a “worker” in section 230(3) of the
Employment Rights Act 1996 and other relevant legislation
includes anyone employed under a contract of employment
but also extends to some individuals who are self-employed.

Eh? I thought that if you were a 'worker' then by definition you weren't self-employed, whereas Mr Toy seems to regard 'worker' as a sub-set of the self-employed.

Maybe I'm wrong, but if not then that's a bit of a clanger early in the piece.

In fact, even in the first paragraph he describes Uber as using a 'peer-to-peer app'. Never heard it described like that before, and he mentions it several times in the piece, and that seems unnecessarily technical. But I'm guessing it's maybe intended to make Uber sound different from other firms using apps. Which in turn is consistent with the rest of the piece, which tries to make Uber sound as different as possible from mainstream firms, while I've always viewed Uber in terms of how similar they are to the existing trade.

Andy Peters of the GMB does concentrate more on the actual judgement, but like Mr Toy seems to be trying too hard to distinguish his own circuit from Uber. But, to be fair, he does also suggest that other more traditional circuits are maybe a bit closer to the Uber model than his own.

But in turn this maybe highlights how he overdoes the stuff about 'full members' and 'associate members' of his set-up, and the stuff about non-profit and payments etc. Which is all very well, but this simply underlines that in terms of control and dependency, associate members can't be the same as full members. And in turn this highlights that Mr Peters seems to be trying to completely detract attention from non-members on his circuit, not to mention drivers who don't even own a vehicle. (I'm assuming there are others on the circuit in a subordinate position to Mr Peters, which is surely pertinent to the employment status issue, but if not then I'll stand corrected.)

So maybe it's just me, but both Mr Toy and Mr Peters seem to be using broadly the same technique of trying to emphasise the differences to Uber while hiding the similarities. But, of course, no doubt this will be aimed at people who don't know the trade, not to mention the many others in the trade keen to distinguish their operation from Uber's. And that approach has generally worked so far as far as the courts and press commentators are concerned, so no doubt they'll continue in this vein in the meantime.

But surely the similarities are greater than the differences??

So when Mr Toy talks about 'workers slaving away in the dark satanic mills', maybe he should be directing his fire towards the mill owners like Mr Peters :badgrin:


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 Post subject: Re: Self employed or not
PostPosted: Sat Mar 13, 2021 3:09 pm 
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StuartW wrote:
Quote:
The definition of a “worker” in section 230(3) of the
Employment Rights Act 1996 and other relevant legislation
includes anyone employed under a contract of employment
but also extends to some individuals who are self-employed.

Eh? I thought that if you were a 'worker' then by definition you weren't self-employed, whereas Mr Toy seems to regard 'worker' as a sub-set of the self-employed.

Actually, Mr Toy may have a point, because did I read that those classed as 'workers' are still regarded by HMRC as an independent contractor in terms of tax and self assessment, and for that all important SEISS grant? :-o

If so, then to that extent he's right that 'workers' are a subset of the self-employed.

But maybe this is because of HMRC's strict PAYE v self assessment divide - you're generally either one or the other, and there's no inbetween.

So from the taxation perspective maybe Mr Toy is correct in saying that some self-employed people are also 'workers'. But the 'workers' thing is more about employment law and the employment status issue in particular, so to that degree maybe his statement isn't wholly accurate.

So maybe drivers in the trade can be categorised like this:

For employment law purposes:

1 Employees (very few drivers)
2 'Workers' (Uber drivers)
3 Independent contractors/self-employed (vast majority of drivers at present)

For taxation purposes:

1 Employees taxed under PAYE
2 'Workers' or self-employed, both taxed under self assessment


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 Post subject: Re: Self employed or not
PostPosted: Sat Mar 13, 2021 6:47 pm 
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perry wrote:
My situation is that I don't have a data head fitted in cab. I would just phone him to cover a job. He can refuse if he would rather sit on the rank. Someone wrote if you supply the tools to do the job then there classed as workers.
Then surely most london hackney carriage drivers would be employed
Because most of them rent a cab full insuranced and maintained and do work off different apps.

As I said at the beginning of this thread I think the likes of your goodself should be fine. If anything your scenario confirms why at least one of the two articles in PHTM were wrong.

If you followed the views shared by the GMB chap, as you take a % of the drivers take then he is a worker, and entitled to workers rights to be paid by you. :shock:

On a one to a hundred list, with one being self employed status, and a hundred being worker status, I would put your situation as being ten. Strangely I would put Uber as being no more than fifty, and the likes of Addison Lee as one hundred.

Which leaves quite a lot of the trade above Uber. :shock:

When all this process started back in 2016 I was very surprised the union behind this at that time, the London GMB, went after Uber rather than Addison Lee, who I viewed at the time as being a slam dunk. Bearing in mind that they only allow their vehicles to be used and refuse to allow drivers to work with other firms.

The fact that Uber lost so convincingly is evidence to me that the vast majority of the trade are open to claims from drivers in respect of minimum wage, holiday and sick pay.

Which is why I was so surprised when I read 'stick your head in the sand' stuff in March's PHTM

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 Post subject: Re: Self employed or not
PostPosted: Sat Mar 13, 2021 7:56 pm 
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perry wrote:
My situation is that I don't have a data head fitted in cab. I would just phone him to cover a job. He can refuse if he would rather sit on the rank. Someone wrote if you supply the tools to do the job then there classed as workers.
Then surely most london hackney carriage drivers would be employed
Because most of them rent a cab full insuranced and maintained and do work off different apps.



Many years ago I came across a court case where a driver who rented a cab won a claim to be payed by the proprietor for loss of earnings whilst the cab was off the road.


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