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Uber drivers are 'workers'
Uber BV v Aslam
Drivers for Uber are ‘workers’ says the EAT. Dismissing Uber’s appeal, the EAT holds that the drivers worked for Uber as part of its business rather than there being any sort of agency relationship.
In October 2016 an employment tribunal held that a group of Uber drivers (supported by their union the GMB) are not self-employed but are ‘workers’ who are entitled to workers’ rights including to be paid the National Minimum Wage and receive paid holiday. As part of its defence Uber denied that its drivers were entitled to workers’ rights, as it is just a technology company not a taxi provider, and that Uber drivers do not work for Uber but instead work for themselves as self-employed business men and women. See also ‘Uber, employment status and the gig economy’.
Uber appealed, arguing that the tribunal had got it wrong and that it was in fact acting as agent for the drivers who were not workers but independent contractors. The case is the first and largest of the cases to be brought in relation to those who participate in the ‘gig economy’.
The EAT dismissed the appeal on all grounds and in relation to the question of the contracts it said that the case law was clear - tribunals must look at the reality of the situation rather than what is said in the contract. The reality was that despite what the contracts said, the drivers were incorporated into the Uber business of providing transportation services, subject to arrangements and controls that did not point to a direct contractual relationship with the passenger every time and therefore away from the argument that they were working in business on their own account.
The EAT concluded the tribunal had been allowed to consider the true agreement between the parties and reject the ‘label’ given by Uber that they were simply an agency.
Other arguments were that the tribunal should not have relied on regulatory requirements. It had, argued Uber,made a number of internally inconsistent and perverse findings of fact including the fact that the drivers were required to work for Uber and that the tribunal had failed to take into account relevant matters relied on by Uber as being inconsistent with worker status and which in fact strongly suggested they were in business on their own account.
The EAT said that when carrying out its assessment the tribunal was entitled to look at the whole factual matrix and in considering its findings it was important to look at the judgment as a whole and in doing so it was clear there was nothing inconsistent or perverse.
In particular, the tribunal had been entitled to conclude that there were obligations upon Uber drivers that they should accept trips offered by Uber and that they should not cancel trips once accepted and be penalised if they did not.
There was also nothing wrong with the tribunal’s conclusion that to be ‘working’ the drivers had to be in the relevant territory, with the app switched on and be able to accept assignments as this helped with the assessment of working time obligations and indeed was entirely consistent with Uber’s own description of a driver’s obligation when ‘on duty’.
Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2017/0056_17_1011.html
The decision signals what may be viewed as a curtailment of the use, or misuse, of thousands of ‘workers’ within the rapidly growing modern business phenomenon, known as the ‘gig economy’. Whilst each case will have to be decided on its own facts the EAT’s decision will no doubt make it easier for many people working in the ‘gig economy’ to argue that you have to look at the reality of the situation and not just the contract and that they now fall within the definition of ‘worker’ where previously they had been treated as ‘self-employed’ and denied access to any employment rights.
The EAT’s decision will no doubt be welcomed and celebrated by the 40,000 Uber drivers working in the UK and many others in a similar position. However, they may wish to leave the champagne on ice pending any appeal by Uber to the Court of Appeal which will undoubtedly follow.
Uber had petitioned for the case to be fast tracked to the Supreme Court and joined with the Pimlico Plumbers case which is due to be heard by the Supreme Court early in February 2018. This was refused however so the Court of Appeal is their next port of call. We are also awaiting the government’s response to the Taylor Review which came up with a series of recommendations for dealing with ‘gig economy’ issues.