Amazon drivers’ case ‘is no Uber, but may be a catalyst for self-employed’

A legal case against Amazon from 1,400 of its self-employed drivers probably won’t end up being as key as the Uber ruling, a recruitment lawyer has signalled to FreelanceUK.

But because the drivers are now heading to have their employment status with the online retailer tested in court to see if they are employees, as they claim, there is another significance.

IWORK says the significance stems from the drivers working via a third party -- the retailer’s Delivery Service Partners, all of which back Amazon in saying the drivers are freelance.

'Amazon case may be a catalyst for other self-employed'

“If [the drivers are] successful, the case may be a catalyst for many other self-employed workers to follow suit,” the independent work advisory said in a statement to FreelanceUK.

“And that is this -- cutting out the middleman [-- in this case the DSPs], and seeking to secure employment rights from the business at the top of the chain.”

IWORK founder Julia Kermode says traditionally, agencies (which the DSPs in effect are) minimise risk of employment claims, by being the contractual entity between the two parties.

'Turns on its head'

“So you wouldn’t normally be able to seek rights directly from your client,” she says. “But this case potentially turns that [fireguard, established in James V Greenwich,] on its head.

Kermode continued to FreelanceUK: “The Amazon case means that even if you are supplied via another entity, you may still be able to claim statutory worker rights from your client.”

Yesterday, recruitment law firm Lawspeed said if the First Tier Tribunal set to hear the drivers’ case (despite Amazon’s best efforts) “takes a new tack”, only then would it be a “defining case.”

'Won't set a precedent'

But actually, it would still only be a FTT ruling, so it won’t “set a precedent until it gets to the appeal stage,” observes another law firm, ReLegal Consulting.

Nonetheless, when asked about the Amazon case, ReLegal’s founder Rebecca Seeley Harris added in a statement to FreelanceUK that it promises to be “interesting.”

Recruitment lawyer Adrian Marlowe agrees that the details of working practices due to emerge, like how the drivers actually go about delivering Amazon parcels, will interest some.

'Differences between Uber and Amazon'

But he too played down the significance (at this stage), signalling that the Amazon case is unlikely to end up being as instructive as the Uber ruling.

There are other differences between the two as well.

“The difference between the Uber and the Amazon case appears to be that there was no written contract between Amazon and the drivers who were contracted and paid via the outsource companies, whereas there was a contract between Uber and the drivers who were paid via Uber,” the lawyer said.

'Being told you're self-employed always going to be a problem'

The boss of Lawspeed, Mr Marlowe added that even if the FTT does take the different tack, “which it has historically rejected” since James V Greenwich in 2008, Amazon drivers are quite different ‘self-employed’ operators to, say, creative industries freelancers.

“It's always likely to be a problem if you are told by a third-party that you will be self-employed,” he emphasised last night to FreelanceUK.

“Apparently, this was a requirement of Amazon’s, as opposed to a choice of the drivers. It's important to distinguish self-employed individuals as people who choose to be in business on their own account, from those who are told they are self-employed based on a potential legal technicality, such as lack of control”.

'In business on their own account'

Also the chair of the Association of Recruitment Consultancies, Mr Marlowe pressed the point, saying the genuinely self-employed “in business on their own account” are unlikely to try to claim employment rights, as the Amazon drivers will do at an FTT hearing yet to be scheduled.

“These drivers aren’t convinced they’re self-employed and want employment rights,” reflects IR35 advisory Qdos.

“Amazon has a different view and claims they’re genuinely self-employed, meaning they have no obligation to provide holiday pay.”

'Messy, expensive'

Qdos CEO Seb Maley added: “Cases like these have the potential to get very messy and extremely expensive for all parties involved.

“Over the years, there have been similar issues at Uber, Deliveroo and many other gig economy platforms. The key to solving this problem is rigorously assessing employment status from the outset, ensuring all parties are in agreement before the working relationship starts.”