'˜Now is the time for radical steps to make decent working conditions a reality for all workers'

For millions of people, the only work available is on low pay that needs to be topped up by benefits, with no guaranteed income or fixed hours. Many are pushed into what look like self-employed contracts with no employment rights.

Often it is not a matter of genuine choice but the result of employers, who usually hold the power, being able to get what they want; maximum flexibility, lowest cost for the work they need doing and minimum restrictions on being able to treat their workers as they like.

There are plenty of good employers. The purpose of employment rights is to bring into line the small number of employers who actively exploit their workers, and to persuade those who need encouragement to provide reasonable working conditions. These rights are being denied to those who need them most; those in the weakest bargaining position. People in non-unionised workplaces are especially vulnerable.

The Government is doing nothing to redress the balance and to restore rights denied to huge sections of the workforce. Instead, the task of upholding the rights of workers is falling to the courts, but they can only decide on the cases that are actually brought before them. Individual workers cannot generallyafford the legal costs. Cue the trade unions, which are stepping in to fund the claims that need to be brought most desperately, to secure rights for all workers.

The latest example is the union-funded claims of Uber drivers. On an appeal by Uber, the Employment Appeal Tribunal (EAT) agreed with the drivers that they were not self-employed, running a business on their own account, but worked for Uber and so had a right to be paid the minimum wage.

The EAT also decided that, at least from accepting a trip to completing it, the driver is “working” for the purposes of calculating maximum weekly working hours, holiday pay and rest breaks. “Workers” also have the right to claim for unlawful deduction of wages. These rights do not apply to the genuinely self-employed.

For other rights, such as the right to claim unfair dismissal, it is not enough to be a ‘worker’. You have to satisfy the legal test to qualify to be classed as an ‘employee’.

In the Uber case, whatever the paperwork said, the drivers were quite clearly under Uber’s control. They had to accept trips offered by Uber, and could not cancel trips once accepted without penalty. They were required to be in the relevant territory, with the app switched on, able and willing to accept trips.

Although this decision is useful to others challenging their employers who are wrongly treating them as self-employed, each case will continue to be decided on its own facts. This is expensive for everyone and makes for unhelpful uncertainty.

Uber are appealing. Even if they ultimately fail, Uber and companies like them are likely to simply make small changes to their business model and arrangements with drivers, to try to get around the law on worker status. They may succeed. At best, it will require yet more legal cases to close new loopholes.

We urgently need the Government to clarify what a ‘worker’ is by law, and to guarantee all those working in the gig economy the minimum wage and other basic employment rights: holiday pay, rights to notice of change of working patterns, clarity as to how payments are calculated, and a ban on excessive working hours. There should be an assumption of worker status unless the employer can prove that the person working for him is genuinely self-employed.

For all the talk of help for the “just about managing”, the Government is doing nothing about this scandal. The Tories are the natural allies of employer freedom. They resist measures that protect workers until they are forced by the courts to concede. A prime example of this is that, despite overwhelming evidence that the introduction of Employment Tribunal fees was preventing huge numbers of workers seeking justice, it took a ruling of the Supreme Court to force the Government to back down and abolish the fees. They keep on trying to restrict the ability of unions to act on their members’ democratically expressed wishes.

Don’t be fooled by Theresa May’s warm words and weak proposals. They are an attempt to impress those whose votes she needs. If the Tories ever achieve a governable majority, their normal service of maximising employer freedom and minimising workers’ rights will be resumed. Now is the time to press them to take radical steps to legislate to make decent working conditions a reality for all workers.

Joy Drummond is an employment partner at Leeds law firm Simpson Millar.