The 19th February 2021 will long have reverence in Employment Law in the UK and abroad. It will be known as the day the UK Supreme Court made the decision to dismiss Uber's final appeal (Uber BV and others v Aslam and others  UKSC 5) in a landmark judgment.
The case against Uber, in regard to employment rights, has been in the courts since 2016. In which Uber claimed that the individuals who worked for them were third-party self-employed contractors and therefore didn't qualify for a number of employment rights under the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998.
In Scotland, and the UK, there are long-standing tests in law to determine whether an individual is an employee or a contractor. Let's have a look at them here:
O'Kelly v Trusthouse Forte  QB 90: tells us that "the test to be applied in identifying whether a contract is one of employment or services...is a question of fact and degree" - not very clear, but what it does tell is that for the Court, the question is one of applying fact to specific circumstance.
Ready Mixed Concrete (South East) Ltd v Minister of Pension and National Insurance  2 QB 497: tells us that the Court are looking for several conditions within the relationship. The significant test is one of control: this includes the power of deciding the thing/task to be done; the way in which it shall be done; the means to be employed in doing it; the time when and where it shall be done. A traditional contract for services will provide for a certain task to be completed within an overarching timescale, but will allow for the service provider to decide when/where/how the task should be done. The more a company expressly states how these elements are to be completed, the more the contract shifts from services to employment as the individual loses control.
Back to Uber: Their argument centred around the way in which they work, being that an individual driver only had to work when carrying out services (i.e. driving someone) based on that passengers specific requirements, and that Uber was just a booking agent for the driver. However, the Employment Tribunal disagreed and stated that the drivers were "working under a "workers' contract" when they had the Uber app switched on; were in the territory in which they were authorised to work, and were able and willing to accept assignments". Aslam, one of the drivers who brought the case, said that the freedom to choose when to work is a mirage: drivers who don't log in at peak times or drive long hours won't cover their outgoing costs - car payments, insurance and maintenance.
The less relative bargaining power an individual has when entering a contract, the more likely they are to be an employee. It's not enough to say that the individual you contract with has to raise invoices and is personally accountable for their tax and national insurance - the employment relationship is far more complex than how payment is achieved. In Pimlico Plumbers & Mullins v Smith  UKSC 29 we see the Supreme Court stating that the strict narrative PP had in the contract, including the requirement for personal service, was evident the individuals were employees not independent contractors. The position of subordination is a critical difference between the employment relationships.
It's not the first - nor will it be the last - time we will see companies attempting to circumnavigate employment rights by using a Contract for Services and claiming the individuals are "self-employed independent contractors". If you have a Contract for Services, how would yours measure up in an Employment Tribunal?