EMPLOYMENT LAW ESSAY PLANS
PART 1 - REGULATING WORK RELATIONS
GIG WORK
Are the Supreme Court judgments in Uber BV v Aslam [2021] UKSC 5 and Deliveroo
[2023] UKSC 43 mutually consistent? And what do they tell us about the way in
which platform work is, and should be, regulated in the UK? Discuss. (Formative)
Intro:
The gig econ challenges traditional employment law binaries.
Uber and Deliveroo - reach opposite conclusions on worker status for identical
platform business models
Main argument: the judgements are formally distinguishable but substantively
inconsistent. They are consistent on their own legal terms (substitution clause
distinction) but reveal deeper inconsistency: Uber adopts a purposive, reality-
focused approach while Deliveroo reverts to formalistic contractualism. Together,
they show that UK regulation of platform work is fragmented, status driven and
inadequate - requiring legislative intervention (EU Platform Work Dir model) rather
than litigation.
Roadmap: (1) compare the judgements, identifying the substitution clause as the
formal distinction (2) argue this distinction is unconvincing given Countouris's
critique (3) analyse what this reveals about UK regulation (over-reliance on status,
judicial reluctance) (4) conclude with reform proposals (single worker status, ERB
2024, EU Dir 2024/2831)
P1: The Judgements - Formally Distinguishable
Uber BV v Aslam
o Facts: drivers claimed worker status for NMWA 1998 and WTR 1998. Uber
argued it was a tech platform not an employer.
o Held: Drivers are limb (b) workers
o Reasoning (Legatt LJ): Purposive approach.
Look at the reality of the relationship, not contractual fictions
(following Autoclenz)
Uber controls (set routes, sanction non-acceptance 80% expected,
rating system)
Substitution clause: per PHV regulations forbidden - personal service
required
'working time': app on + in territory = 'unmeasured work' (available
for work)
o Significance: expansive reading of 'worker', purposive statutory
interpretation over contractual formalism
Deliveroo
o Facts: IWGB sought TU recognition under TULRCA 1992, s.296. Deliveroo
argued riders weren't 'workers' due to substitution clause.
o Held: riders are not workers - no right to CB
o Reasoning: Formalistic
, Unfettered substitution clause - rider could send anyone without prior
approval
Clause was genuine (exercised by small number - irrelevant per
CA/SC)
Therefore no personal service - no 'worker' status under s.296
TULRCA
Art 11 ECHR (FoA) not engaged bc no emp relationship
o Significance: narrow, contractual reasoning, substitution clause defeats
worker status even if rarely used
Formal distinction: Uber - substitution forbidden, Deliveroo - substitution permitted
(unfettered/genuine)
P2: Why the Distinction is Unconvincing - Substantive Inconsistency
The judgements are formally consistent but reveal a deep methodological
inconsistency - Uber prioritises reality whereas Deliveroo prioritises contract
Countouris's critique
o Contractual bias - SC focused on substitution clause instead of a relational
approach (look at actual working practices)
o Ignored reality for most riders - even if substitution could happen, it rarely
did.
o Other professions (academics, GPs) can substitute but remain 'employees' -
substitution alone isn't 'self-employment'
o TULRCA s.296 parliament intended wider personal scope for collective rights
(Art 11) but SC ignored this
Therefore the same platform business model (app-based, algorithmic management,
'gig' work) produces opposite results based on drafting choice (sub clause) - this is
incoherent as regulatory policy
Collins/Atkinson: Post-Uber platforms simply added substitution clauses and
Deliveroo shows this strategy succeeds creating a cat-and-mouse game where courts
expand protection and platforms contract around it.
P3: What this Tells us Abt UK Regulation of Platform Work
The judgements reveal 4 features of UK platform work regulation: status-driven,
fragmented, litigation-dependent + easily circumvented
1. Over-reliance on Binary Status Distinctions
o 3 tier system (employee, worker, self emp) creates litigation incentives
o Both judgements show millions spent on status disputes rather than rights
enforcement
o C.f. EU Dir 2024/2831 - rebuttable presumption of employment - shifts
burden on platform
2. Judicial Reluctance to Engage with Art 11
o Deliveroo (Art 11inapplicable) Countouris argues this is a misinterpretation
o ILO R-198 'employment relationship' should be based on facts not contract
o C.f. French jurisdiction - held Uber drivers were employees
3. Fragmented Personal Scope across Statutes
o ERA 1996 s.230 (employee) vs s.230(3)(b) (worker) vs TULRCA 1992 s.296
(worker for collective rights)
, o Deliveroo applied narrower TULRCA definition - but why should collective
rights be harder to access than individual rights?
o Bogg: reflects broader de-democratisation e.g. TUA 2016, Minimum Service
Level Act 2023
4. Cat and Mouse Regulation
o Autoclenz (2011) - reality prevails over contract (progressive)
o Uber (2021) purposive approach (progressive)
o Deliveroo (2023) formalistic retreat (regressive)
o Platforms adapt, Uber added sub clauses, Bolt now litigating the same issues
o Prassl: English LL has outgrown the binary divide - courts can't keep up with
structural economic change
P4: How Platform Work SHOULD be Regulated - Reform
The inconsistency between the judgements shows that litigation cant and isn't
solving gig econ regulation - legislative reform is necessary
1) Single Worker Status (Ewing Hendy Jones)
o 1 category for all personal work unless genuinely operating a business on
own account
o Legal presumption of worker status for those performing personal work for
another
o Legal presumption of employer to whoever pays the worker
o ERB 2024: commitment to consult on single status but not yet implemented
o Countouris: ERB risks failing w/out unified status
2) Radical Reconceptualization
o Freedland + Kountouris moving away from CoE as the organising principle.
o 'Personal Work' framework offers 2 innovations:
o (1) a 'family of personal work contracts' – treat all contracts for personal work
(employees, workers, independent contractors, agency workers) as related rather
than distinct; and
o (2) a 'personal work nexus' – capturing non-contractual links (insurance,
multilateral platform arrangements) that fall outside traditional contractual
analysis.
o This better reveals similarities across work types and equips lawyers to handle
diverse arrangements, while addressing concerns that diluting status categories
weakens LL's protective mission.
o The framework could be operationalised via European comparative methodology –
though it remains theoretical pending legislative action
o However, this remains theoretical and no legislative uptake with ciritcs raising it may
dilute employee-specific protections incidental to high degree of subordination
uniquely experienced by this class of worker.
3) EU Platform Work Dir 2024/2831
o Broad personal scope 'persons performing platform work regardless of
contract type'
o Art 5: rebuttable presumption of employment - platform must prove
otherwise
o Transparency requirements for algorithmic management
o Prohibit automated dismissal decisions
o UK not bound but could voluntarily adopt
PART 1 - REGULATING WORK RELATIONS
GIG WORK
Are the Supreme Court judgments in Uber BV v Aslam [2021] UKSC 5 and Deliveroo
[2023] UKSC 43 mutually consistent? And what do they tell us about the way in
which platform work is, and should be, regulated in the UK? Discuss. (Formative)
Intro:
The gig econ challenges traditional employment law binaries.
Uber and Deliveroo - reach opposite conclusions on worker status for identical
platform business models
Main argument: the judgements are formally distinguishable but substantively
inconsistent. They are consistent on their own legal terms (substitution clause
distinction) but reveal deeper inconsistency: Uber adopts a purposive, reality-
focused approach while Deliveroo reverts to formalistic contractualism. Together,
they show that UK regulation of platform work is fragmented, status driven and
inadequate - requiring legislative intervention (EU Platform Work Dir model) rather
than litigation.
Roadmap: (1) compare the judgements, identifying the substitution clause as the
formal distinction (2) argue this distinction is unconvincing given Countouris's
critique (3) analyse what this reveals about UK regulation (over-reliance on status,
judicial reluctance) (4) conclude with reform proposals (single worker status, ERB
2024, EU Dir 2024/2831)
P1: The Judgements - Formally Distinguishable
Uber BV v Aslam
o Facts: drivers claimed worker status for NMWA 1998 and WTR 1998. Uber
argued it was a tech platform not an employer.
o Held: Drivers are limb (b) workers
o Reasoning (Legatt LJ): Purposive approach.
Look at the reality of the relationship, not contractual fictions
(following Autoclenz)
Uber controls (set routes, sanction non-acceptance 80% expected,
rating system)
Substitution clause: per PHV regulations forbidden - personal service
required
'working time': app on + in territory = 'unmeasured work' (available
for work)
o Significance: expansive reading of 'worker', purposive statutory
interpretation over contractual formalism
Deliveroo
o Facts: IWGB sought TU recognition under TULRCA 1992, s.296. Deliveroo
argued riders weren't 'workers' due to substitution clause.
o Held: riders are not workers - no right to CB
o Reasoning: Formalistic
, Unfettered substitution clause - rider could send anyone without prior
approval
Clause was genuine (exercised by small number - irrelevant per
CA/SC)
Therefore no personal service - no 'worker' status under s.296
TULRCA
Art 11 ECHR (FoA) not engaged bc no emp relationship
o Significance: narrow, contractual reasoning, substitution clause defeats
worker status even if rarely used
Formal distinction: Uber - substitution forbidden, Deliveroo - substitution permitted
(unfettered/genuine)
P2: Why the Distinction is Unconvincing - Substantive Inconsistency
The judgements are formally consistent but reveal a deep methodological
inconsistency - Uber prioritises reality whereas Deliveroo prioritises contract
Countouris's critique
o Contractual bias - SC focused on substitution clause instead of a relational
approach (look at actual working practices)
o Ignored reality for most riders - even if substitution could happen, it rarely
did.
o Other professions (academics, GPs) can substitute but remain 'employees' -
substitution alone isn't 'self-employment'
o TULRCA s.296 parliament intended wider personal scope for collective rights
(Art 11) but SC ignored this
Therefore the same platform business model (app-based, algorithmic management,
'gig' work) produces opposite results based on drafting choice (sub clause) - this is
incoherent as regulatory policy
Collins/Atkinson: Post-Uber platforms simply added substitution clauses and
Deliveroo shows this strategy succeeds creating a cat-and-mouse game where courts
expand protection and platforms contract around it.
P3: What this Tells us Abt UK Regulation of Platform Work
The judgements reveal 4 features of UK platform work regulation: status-driven,
fragmented, litigation-dependent + easily circumvented
1. Over-reliance on Binary Status Distinctions
o 3 tier system (employee, worker, self emp) creates litigation incentives
o Both judgements show millions spent on status disputes rather than rights
enforcement
o C.f. EU Dir 2024/2831 - rebuttable presumption of employment - shifts
burden on platform
2. Judicial Reluctance to Engage with Art 11
o Deliveroo (Art 11inapplicable) Countouris argues this is a misinterpretation
o ILO R-198 'employment relationship' should be based on facts not contract
o C.f. French jurisdiction - held Uber drivers were employees
3. Fragmented Personal Scope across Statutes
o ERA 1996 s.230 (employee) vs s.230(3)(b) (worker) vs TULRCA 1992 s.296
(worker for collective rights)
, o Deliveroo applied narrower TULRCA definition - but why should collective
rights be harder to access than individual rights?
o Bogg: reflects broader de-democratisation e.g. TUA 2016, Minimum Service
Level Act 2023
4. Cat and Mouse Regulation
o Autoclenz (2011) - reality prevails over contract (progressive)
o Uber (2021) purposive approach (progressive)
o Deliveroo (2023) formalistic retreat (regressive)
o Platforms adapt, Uber added sub clauses, Bolt now litigating the same issues
o Prassl: English LL has outgrown the binary divide - courts can't keep up with
structural economic change
P4: How Platform Work SHOULD be Regulated - Reform
The inconsistency between the judgements shows that litigation cant and isn't
solving gig econ regulation - legislative reform is necessary
1) Single Worker Status (Ewing Hendy Jones)
o 1 category for all personal work unless genuinely operating a business on
own account
o Legal presumption of worker status for those performing personal work for
another
o Legal presumption of employer to whoever pays the worker
o ERB 2024: commitment to consult on single status but not yet implemented
o Countouris: ERB risks failing w/out unified status
2) Radical Reconceptualization
o Freedland + Kountouris moving away from CoE as the organising principle.
o 'Personal Work' framework offers 2 innovations:
o (1) a 'family of personal work contracts' – treat all contracts for personal work
(employees, workers, independent contractors, agency workers) as related rather
than distinct; and
o (2) a 'personal work nexus' – capturing non-contractual links (insurance,
multilateral platform arrangements) that fall outside traditional contractual
analysis.
o This better reveals similarities across work types and equips lawyers to handle
diverse arrangements, while addressing concerns that diluting status categories
weakens LL's protective mission.
o The framework could be operationalised via European comparative methodology –
though it remains theoretical pending legislative action
o However, this remains theoretical and no legislative uptake with ciritcs raising it may
dilute employee-specific protections incidental to high degree of subordination
uniquely experienced by this class of worker.
3) EU Platform Work Dir 2024/2831
o Broad personal scope 'persons performing platform work regardless of
contract type'
o Art 5: rebuttable presumption of employment - platform must prove
otherwise
o Transparency requirements for algorithmic management
o Prohibit automated dismissal decisions
o UK not bound but could voluntarily adopt
