Is the Gig Really Up? – Insight from Recent UK Court Decisions

With the advantages of flexible recruitment and cost saving, more businesses are engaging gig workers to deliver services. Despite the Hong Kong courts’ increasing employee-friendly approach to labour disputes, recent UK decisions shed light on the determination of gig workers’ employment status.

In Hong Kong, certain benefits such as paid annual leave, minimum termination notice and life insurance are guaranteed to employees only. Unfortunately, the definition of ‘employee’ is far from clear and very often the issue of concern. 

Albeit the temporary and freelance nature of gig workers, restrictions unilaterally imposed by corporate employers cast doubt as to their apparent autonomy. Earlier, the UK Supreme Court delivered a landmark ruling in Uber BV and others (Appellants) v Aslam and others (Respondents) [2021] UKSC 5 (“Uber”). Focusing on the reality of the situation, it was held that Uber drivers were regarded as employees, especially when Uber possessed substantial bargaining power dictating the term of services. 

While gig workers triumphed in the Uber decision, it should not be viewed as conclusive. More recently, in Independent Workers Union of Great Britain v Central Arbitration Committee and Deliveroo [2021] EWCA Civ 952 (“Deliveroo”), the Court of Appeal affirmed that Deliveroo riders were not workers because they were contractually entitled to engage a substitute in performing their work. Although that right might seldom be exercised, its inclusion plainly contradicted a worker’s inherent obligation to perform personally. 

Although similar cases are yet to be laid down domestically, recent UK decisions serve as a useful reminder about the orthodox approach adopted by the Hong Kong courts. That is, a relationship of employment is ascertained by the “overall impression” (see Poon Chau Nam v Yim Siu Cheung [2007] 1 HKLRD 951) and considering all relevant factors regardless of the labels attached. It is paramount for companies to review their existing practices and make necessary amendments to avoid possible infringement of labour rights. Meanwhile, gig workers should also acknowledge their potential renunciation of statutory protection when they undertake to serve on a non-permanent basis.