In spite of Uber’s argument that its drivers are self-employed and that it simply provides a technology platform, the Court of Appeal has upheld the decision of an employment tribunal that Uber drivers are in fact workers – not self-employed – for employment protection purposes. The judgment means that Uber drivers are entitled to benefit from a number of basic employment rights, including the right to receive a minimum wage and to paid annual leave.
Uber has a smartphone app which allows passengers to book rides from drivers who also have the app. Uber drivers use their own cars and are free to choose when they make themselves available to accept bookings.
A number of Uber drivers had brought claims in an employment tribunal against Uber complaining of unlawful deductions from wages, failure to pay the national minimum wage, and failure to provide paid annual leave. One of the drivers also complained that he had been subjected to a detriment for being a whistle-blower. In order to bring any of these claims, the drivers had to be workers within the meaning of the Employment Rights Act 1996 (ERA), the National Minimum Wage Act 1998 (NMWA) and the Working Time Regulations 1998 SI 1998/1833 (WTR). When hearing the case in 2016, the employment tribunal held that the drivers were workers and not self-employed.
Uber appealed and the case eventually reached the Court of Appeal, which agreed with the employment tribunal and held that the contractual documentation relied on by Uber to support its argument that the drivers were self-employed simply did not accord with the reality of the working arrangements.
Working time
As for what periods count as ‘working time’ for the purposes of calculating the minimum wage and annual leave entitlement, the majority of the Court of Appeal concluded that the drivers should be treated as working whenever they are in the territory in which they are authorised to drive, have switched on the app, and are ready and willing to accept trips.
Permission to appeal
It is worth noting that the Court of Appeal decision was not unanimous and that Lord Justice Underhill disagreed with the decision. In his view, there was no inconsistency between the written terms and the working arrangements, which he said were far from being unrealistic or artificial, and were not materially different from those commonly applied where taxi and minicab owner-drivers are booked through an intermediary. The Court of Appeal has granted Uber permission to appeal to the Supreme Court.
The legal challenge is being seen as a key indicator of mounting concerns over the gig economy.
The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.
© Miller Rosenfalck LLP, January 2019
