EMPLOYMENT E-BULLETIN ARTICLE
The widely anticipated Uber Appeal decision has today been handed down by the Employment Appeal Tribunal. The appeal relates to last year's Employment Tribunal decision in the case of Uber BV and ors v Aslam and ors that Uber drivers were 'workers' and not, as Uber claimed, self-employed. For a detailed reminder of the facts of the case, view our previous article.
The Employment Appeal Tribunal has dismissed the appeal and has agreed with the ruling of the Tribunal that when the Uber drivers have the Uber app switched on, they are 'workers' within the meaning of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998. This outcome is unsurprising, and follows the recent spate of similar decisions regarding employment status in the 'gig economy'. Details of these decisions can be found in our article on the gig economy.
Being found to be workers rather than self-employed means the Uber drivers will be entitled to receive the National Minimum Wage, rights deriving from the Working Time Regulations including 5.6 weeks' paid annual holiday and rest breaks and whistleblower protection.
In reaching the decision HHJ Eady QC characterised the issue at the heart of the appeal as 'when the drivers are working, who are they working for?' and concluded that the employment tribunal was entitled to conclude that there was a contract between Uber and the drivers whereby the drivers personally undertook work for Uber. HHJ Eady QC confirmed that the Employment Tribunal was entitled to reject the characterisation of the relationship between the drivers and Uber in the written contractual documentation along with Uber's contention that it provided its services to the drivers as their agents, based on reviewing the reality of the situation and the true nature of the relationship in practice. HHJ Eady QC also rejected Ubers submission that the Employment Tribunal had erred in relying on regulatory requirements as evidence of worker status, as this was part of the overall factual matrix, and just one of the many factors that the Employment Tribunal took into account. Uber's argument that it was not properly taken into account that drivers were free to take on, refuse or cancel trips also failed and HHJ Eady QC concluded that the tribunal had permissibly found that there was a requirement for drivers to accept at least 80% of offers of work when signed in, and were therefore required to be "willing and able to accept trip requests" when on duty which was sufficient for a finding of an obligation to work.
Tom Elvidge, Uber UK's acting General Manager, has already confirmed that they will be appealing this decision and it will likely run all the way to the Supreme Court.
In the meantime, the fallout from this decision is likely to put further pressure on other 'gig economy' companies to examine their own business models and may make these companies more likely to face claims that their 'contractors' have worker status.
A full article in relation to the decision, and what it means for clients moving forward will be published in our next employment bulletin.
Click here for the full judgment.