Uber drivers are workers, Employment Appeal Tribunal confirms

The Employment Appeal Tribunal has upheld last year’s employment tribunal ruling that Uber drivers are workers, not self-employed contractors. 

Speedread

The Employment Appeal Tribunal (EAT) has upheld last year’s employment tribunal ruling that Uber drivers are workers, not self-employed contractors. The employment tribunal had been entitled to look behind the contractual documentation to determine the true nature of the relationship.  The reality was that the drivers were integrated into Uber’s business of providing transportation services and subject to controls which pointed away from their working in business on their own account.  The employment tribunal had also been entitled to find on the facts of this case that a driver would be “working” if they were in the territory, with the app switched on and ready and willing to accept trips. 

Facts

In Aslam and others v Uber B.V. and others, the claimant Uber drivers brought claims for unlawful deductions from wages (based on failing to pay the National Minimum Wage) and for paid annual leave under the Working Time Regulations 1998.  Two claimants also complained of detrimental treatment on whistleblowing grounds.  In order to qualify for these rights, the claimants needed to show that they were workers. 

At a preliminary hearing held to determine their employment status, the employment tribunal rejected Uber’s argument that it is a technology platform facilitating the provision of taxi services by drivers, all of whom are self-employed. This characterisation of its business model and the contractual documentation created to support it did not reflect the reality of the working arrangements.  The reality was that Uber relies on a pool of workers to provide a private hire vehicle service.     

It concluded that any Uber driver who (a) switches on the Uber app; (b) is within the territory where they are authorised to work; and (c) is willing to accept assignments, is a worker working for Uber under a worker contract.  For so long as those conditions were met, the driver would be “working” for the purposes of the Working Time Regulations 1998 and be entitled to payment of the National Minimum Wage.  

Uber appealed to the EAT.    

Decision

The EAT rejected Uber’s appeal.  The employment tribunal had been entitled to find that the contractual documentation did not reflect the realty of the working arrangements and to look behind the terms and labels used in that documentation to discover the true nature of the relationship.  It had found that in reality the drivers were integrated into Uber’s business of providing transportation services, subject to controls which pointed away from their working in business on their own account.   It had therefore been entitled to conclude that there was a contract between Uber and the drivers under which they undertook personally to work for Uber, as part of its business of providing transport services to passengers.   

On the question of when a driver will be regarded as “working”, the employment tribunal had also been entitled to find on the facts of this case that a driver would be “working” if they were in the territory, with the app switched on and ready and willing to accept trips.  However, each case will depend on its own specific facts and if, in between trips, a driver holds himself out as able and willing to accept jobs from another company, then he may not be considered to be “working” for Uber at those times.   

Implications

Uber has confirmed that it intends to appeal the EAT's ruling and so this is unlikely to be the end of the story.  It is a well-established principle that where contractual documentation does not reflect the reality of working relationships, courts will look behind the documentation to assess their true nature.  Each case will turn on its own facts and the EAT’s decision, whilst unwelcome for Uber, does not mean that similar cases brought by others working in the gig economy will necessarily also be successful.  Indeed, the employment tribunal in this case acknowledged that Uber could have created a business model that did not involve the drivers being workers, it was just that the model they had chosen did not achieve this.  

It is possible that the case will go straight to the Supreme Court and heard alongside the Pimlico Plumbers case in February next year.  

Earlier this year, the Taylor Review of Modern Workplace Practices (the Good Work Report) made a number of proposals for clarifying the law surrounding employment status, which included proposals in respect of those working in the gig economy. The Government’s response is expected shortly.