Case Update: Court of Appeal Agrees Uber Drivers are Workers

In Uber B.V. and others v Aslam and others, the Court of Appeal has upheld the Employment Appeal Tribunal’s (“EAT”) decision that Uber drivers are workers rather than self- employed contractors.

Uber allows customers to use a mobile phone app to book a ride with drivers that also have the app. The drivers own their own vehicles and can choose when they want to log on and off the app, to make themselves available or unavailable for work.

Uber’s position is that the drivers are self- employed contractors and that the company is an intermediary that provides booking and payment services. A number of Uber drivers have sought to argue that contrary to Uber’s position, they are actually workers on the basis that they are contracted to personally provide services to Uber, a company which is neither a client or customer of theirs.

The significance of the distinction between self- employed contractor and worker for current purposes is that a worker attracts greater employment law rights, such as the right to receive national minimum wage, paid holiday and rest breaks.

The Employment Tribunal (“ET”) that originally dealt with this matter considered whether the drivers were workers or self- employed contractors. The ET also considered when the drivers could be said to be working for the purposes of the Working Time Regulations 1998. In particular, the question was whether the drivers were working during the time that they were logged into the app waiting for a job or whether working time should only be measured from the time that they accept a job.

The Employment Tribunal (“ET”) found that the drivers were workers and that they were working during any period that they were within their territory, had the Uber app turned on and were ready and willing to accept a job. Uber initially appealed to the Employment Appeal Tribunal (“EAT”), which upheld the decision and appealed again to the Court of Appeal.

The Court of Appeal published its judgment yesterday, upholding the decision of the EAT. Although Uber’s contractual paperwork indicated that it acted as an intermediary and that drivers were engaged as independent contractors, the majority of the Court of Appeal considered that this was not reflective of the true position. Rather, it took the view that Uber runs a transportation business and the drivers provide skilled labour through which the business delivers its services and makes a profit. The Court concluded that it cannot correctly be said that Uber works for the drivers.

Given the majority’s conclusion that the written terms did not reflect the practical reality of the relationship, it was considered that the terms could be disregarded in accordance with the principle established in earlier case law (Autoclenz Ltd v Belcher).

Lord Justice Underhill disagreed with the majority and set out his view in a dissenting judgment. He distinguished the Uber case from the Autoclenz case referred to above, on the basis that, in his view, there was no inconsistency between Uber’s written terms and the actual working arrangements. In other words, he did not consider it to be a ‘sham’ arrangement. He also noted that the model Uber was working under was not dissimilar from other models commonly used where taxi and minicab drivers are booked through an intermediary.

As for the question relating to working time, the majority agreed with the EAT’s decision. Underhill LJ again disagreed with the majority on this point, taking the view that there was no positive contractual obligation on drivers to accept a minimum number of trips. Accordingly, he took the view that drivers should only be treated as working from the moment that they accept a job.

This decision in this case is in line with the decisions reached in the majority of recent employment status cases. Lord Justice Underhill’s dissenting judgment is an interesting one because it goes against the grain of these decisions. The likelihood is that this case will now go the Supreme Court given that the Court of Appeal has given Uber permission to appeal.

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