79: Employment Appeals Tribunal confirms that Uber drivers are workers
In Uber BV and others v Aslam and others, the Employment Appeals Tribunal (EAT) has upheld the Employment Tribunal’s decision that Uber’s drivers are workers and not self-employed contractors.
The Employment Tribunal had ruled that most features of Uber’s relationship with its drivers are indicative of worker status, most importantly the significant degree of control exercised by Uber over the way in which drivers work, the fact that the drivers cannot in practice accept work from other sources, and the lack of a right of substitution.
On appeal, Uber argued that the Tribunal had been wrong to reject its contention that it is not a taxi service provider, but simply a technology platform acting as an agent for self-employed drivers by using the Uber app to put them in touch with passengers. The EAT disagreed, ruling that it was difficult for Uber to argue that there is a principal and agent relationship when there is no direct written agreement between the drivers and Uber London Limited, which holds the operating licence in London. In reality, the drivers are incorporated into Uber’s business of providing taxi services. As the Tribunal had noted, it was unlikely that 30,000 individual drivers sharing one point of contact could be operating as separate businesses. The EAT also held that the Tribunal was right to conclude that the very detailed contractual documents do not reflect the reality of the working relationship between Uber and its drivers, particularly given the inequality in bargaining power.
The EAT had more difficulty with the issue of precisely when the drivers are ‘working’ for the purposes of their entitlement to the National Minimum Wage. However, the EAT also approved the Employment Tribunal’s finding that the drivers are working once they have switched on the app, are within the territory in which they are authorised to work, and are able and willing to accept assignments from Uber.
It is reported that Uber intends to appeal the EAT’s decision in the Court of Appeal, and the final outcome of this litigation is therefore unlikely to be decided for some time. Although the judgment provides some guidance on how employment status will be assessed for organisations using a similar business model, this will always depend on the particular facts and circumstances of each case. Employers who use self-employed contractors and app-based services are advised to check whether written agreements reflect the reality of their working relationship and to assess any potential financial and reputational risks involved in their current business model.
15 January 2018