In the recent case of Uber BV and others v Aslam and others, the Court of Appeal upheld the finding that Uber drivers are workers and therefore entitled, amongst other things, to paid holidays and the minimum wage.
Background
In this case, the Court of Appeal considered the question of whether Uber drivers are self-employed or workers. Essentially, Uber has argued that the drivers are self-employed and that Uber simply provides a platform for the provision of taxi services. You can find more details on the EAT decision in our update here.
Decision
The Court of Appeal held that the Employment Tribunal was both entitled and correct to find that the Uber drivers are workers. The Court indicated that in worker status cases such as these, the written documentation may not reflect the reality of a relationship, in which case it may be appropriate to look beyond the contract. The Court found that the written documentation in place in this case contained a “high degree of fiction”. The Court agreed with the Employment Tribunal’s conclusion that Uber drivers provide the skilled labour through which Uber delivers a profitable transportation business. In other words, the Court held, rather than Uber working for the drivers, the reality is the other way round.
It is worth noting that the Court of Appeal’s decision was not unanimous. Lord Justice Underhill challenged whether it was appropriate in this case to set aside the written terms to find that the drivers are workers. He concluded that the contractual position between Uber and the drivers did reflect the reality of their relationship, albeit that particular relationship is one that the law does not protect. He also argued that Uber’s arrangement with the drivers is in line with a well-recognised means of operating a private car hire business (in which the operator acts as a booking agent for a group of self-employed drivers who contract directly with passengers).
Comment
The Court of Appeal’s decision is in some ways unsurprising, as it reflects an appetite to find worker status, driven by a wish to protect gig economy workers. This decision may have significant implications for Uber and the way it operates its business due to increased protections for workers in relation to working time, and workers’ entitlement to provisions such as national minimum wage and paid holiday. Companies that engage staff as “self-employed contractors” may also be interested in this decision.
It is important to remember, however, that these cases are fact-specific so a different set of circumstances could lead to a different result. Additionally, LJ Underhill’s differing opinion in this case may offer Uber a glimmer of hope for an appeal and shows that the relationship between Uber and the drivers is by no means clear cut.
This case highlights the need for more clarity in this area of worker status, with LJ Underhill suggesting that since the law does not currently adequately protect those working in the gig economy, this should be addressed through legislation, rather than through the Courts. The recent Taylor Review was designed to do just this. It remains to be seen whether the recommendations arising from the Taylor Review will help to clarify the worker status test.
Uber has been given permission to appeal, so this matter will now most likely ultimately be decided by the Supreme Court.
Kerry Garcia