The Employment Appeal Tribunal has recently given its decision in the case of Uber BV and others v Aslam and others holding that Uber drivers are workers and therefore entitled, amongst other things, to paid holidays and the minimum wage.
Uber treats its drivers in the UK as self-employed. The contractual position is complex, however Uber essentially argued in this case that that they are a technology platform facilitating the provision of taxi services, not the provider of the services themselves. In essence, they argued that they were acting as agent between driver and customer and the drivers were in business on their own account.
At first instance, the Employment Tribunal held that the drivers were workers. Uber appealed to the EAT and on 10 November 2017, the EAT upheld this decision. The EAT decided the Tribunal was entitled to disregard the written contract between Uber and the drivers and look at the reality of the situation.
The key question in the case was ‘when the drivers were working, who were they working for?’ Uber argued that there was a mosaic of 30,000 businesses held together by one common technology platform. The EAT rejected that argument and held the drivers were working for Uber. They took into account the fact that the drivers were heavily integrated into Uber and marketed to customers as one ‘package’. Uber pointed to the fact that even when signed into the app, drivers could reject or accept whichever jobs they chose so, they were not at the disposal of Uber or under Uber’s control. The EAT found however that the evidence showed that drivers were expected to accept approximately 80% of jobs offered to them which demonstrated that they did not have true autonomy.
This case is of interest to any employers in the Gig economy who treat members of their workforce as self-employed. The case does not mean that in all cases Gig economy staff will be workers, as these cases are very fact sensitive. If a business had less control over its staff, a different decision might be made. Indeed, a decision by the Central Arbitration Committee shortly after the Uber case concerning the status of Deliveroo riders found that they are not workers, as they have the freedom to substitute other riders to take a job.
Giving Uber drivers worker rights could significantly boost Uber’s operating costs in Britain. As workers, they fall within the Working Time Regulations so benefit from tighter regulatory control aimed at protecting worker health and safety e.g. rest breaks, monitoring of hours, minimum paid holiday requirements. They also have the right to be paid the national minimum wage whilst ‘working’. The EAT held that ‘working time’ encompassed all the time that they were logged into the Uber app whilst in their territory.
Uber are appealing this decision. They have been refused the right to ‘leapfrog’ to go straight to the Supreme Court and so the appeal is likely to be heard sometime next year in the Court of Appeal.