Uber drivers are workers, not self-employed contractors

On Friday, the London Central Employment Tribunal held that the drivers engaged by Uber are not self-employed contractors offering their services to passengers via the Uber app. The Employment Tribunal found 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.

One of the central questions for the Employment Tribunal to decide was one of control – the more autonomous a person is in how they do their job, the more likely it is that they are self-employed. In this case, the Employment Tribunal held the view that the picture painted by Uber (with particular mention of its fake invoices generated on behalf of drivers that are never sent to passengers) was a fiction and that the position set out in Uber’s documentation did not correspond with what happened in practice. The Employment Tribunal noted in its judgment that nothing in the reasoning of the judgment should be taken as doubting that Uber could have created a business model that did not involve the drivers being workers, it was simply that the existing business model being used by them did not achieve that aim.

The change of status from “self-employed” to “worker” means that Uber drivers will be entitled to a limited number of employment rights. Amongst other rights, the Uber drivers will be entitled to 5.6 weeks’ paid annual leave each year, a maximum 48 hour average working week (unless they opt out), rest breaks, the national minimum wage (and the national living wage) and protection of the whistleblowing legislation. 

This decision comes against a backdrop of the government’s inquiry into the swiftly changing world of work, including those working in the “gig economy”. The rise of those working “gig jobs has clearly disrupted traditional patterns of employment. Increasingly, boundaries between employee, worker and self-employed have become blurred (especially in the gig economy) and the government has decided to investigate to see if it needs to intervene to regulate the industry. Giving those in the gig economy full employment status could, quite possibly, devastate the low cost business model (and the sustainability of such models) operated by those businesses. The gig economy is currently a hot topic in employment law circles as it cuts across the issue of employment status – that is, whether individuals who take on work on a piecemeal basis are workers, employees or truly self-employed independent contractors. As you might expect, the companies who engage the services of these individuals would prefer the individuals to be self-employed independent contractors. 

This decision by Employment Judge Snelson is unlikely to be the final word on the subject. Uber has made it clear that they intend to appeal the decision. Given how pertinent this decision is to Uber’s business model, it seems fairly likely that will this case will go to the Employment Appeal Tribunal, Court of Appeal and perhaps even up to the Supreme Court. Nevertheless, the Employment Tribunal’s decision will undoubtedly encourage other Uber drivers (as well as others working in the gig economy) to bring similar claims.