“Flexibility” is cited by gig promoters as the benefit that defines on-demand work as better than “traditional employment,” but it often comes at a price. Recent UK rulings suggest that workers must be able to replace themselves — in other words, to subcontract their work — in order to be treated as non-employees. Real independent businesses have more freedom than a gig worker, and it appears courts agree. Something for U.S. gig companies to monitor carefully.
The legal analysis in these recent UK decisions focuses on the various aspects of traditional legal tests to identify a “contract for services” (independent contractor / self-employed) versus a “contact of service” (employment contract). These tests also apply in Ireland. Factors that were examined included: the ability of an individual to substitute someone else into their role, the level of control applied by the contracting party, mutuality of obligation and the ability for the contractor to carry out an