Status of Workers Bill [HL]

Lord Etherton Excerpts

2nd reading
Friday 10th September 2021 Lords Chamber

[Lord Etherton (CB)]

As Master of the Rolls, I presided over the Court of Appeal hearings in the Uber case and its predecessor, the quite well-known Pimlico Plumbers. Our judgments were upheld in the Supreme Court. It is my experience in those cases that has led me to agree with and to support the Bill, in particular the designation of a single status for employees and workers. The specific problem that arose in those two cases, as many Members of the House will appreciate, was that the contractual documents of engagement presented the arrangement as one of self-employment, but that did not fit the facts on the ground.

The problem was exacerbated by the fact that the documents were drawn up, particularly in the Uber case, by banks of lawyers, in that case lawyers in both the United States and Holland. I personally found it almost impossible to understand exactly what was being said in the documentation. It led, in the Uber case, to a division of view and a 2:1 decision. My view, which was upheld in the Supreme Court, was that the Uber drivers were workers, but it meant that one had first to try to understand literally pages and pages of legalese, which was well beyond the competence of any ordinary member of the public or, I would say, any non-lawyer, and many lawyers as well.

This type of difficulty has led to the necessary invention of a principle peculiar to such situations in labour relations, whereby one can look through the terms of a contract to try to understand what the actual reality is on the ground. This is not good for the law. One of the crowning glories of the law in this country is its certainty, which rests on contract. There are very limited circumstances in which one can ignore the terms of a contract, whether fraud or sham or whatever it may be.

The situation that has arisen, which can give rise to, as in those cases, very long, extremely difficult and expensive hearings, is that you are effectively left looking at the contract but ignoring it where you think it ought to be ignored. This leads to unfairness, a lack of certainty in expectations, unfairness on the worker or expensive and protracted litigation. For those reasons in particular I support the Bill and I hope others will too.