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The Supreme Court recently handed down judgment in one of the most widely reported and important employment law cases in recent history. The Respondent claimants in Uber BV and others (Appellants) v Aslam and others (Respondents) claimed that they should be considered “workers” as defined by the Employment Rights Act 1996, and other relevant employment legislation.

The claimants, if so considered, would be entitled to a range of benefits and protection which statute only affords to workers and employees. Uber, as one might expect, denied that the claimants were workers and insisted that they were independent contractors who, as such, were not entitled to those perks.

The initial decision

The Employment Tribunal held in favour of the drivers, ruling that they were workers, whose working hours came into effect whenever three criteria were met. Those were:

  1. That their app was switched on;
  2. They were willing and ready to accept trips; and
  3. They were within their working territory.

While the app was switched off, it was held that there was no question of any contractual obligation to provide driving services, and that there was no ‘umbrella’ contract.

The appeals

The Employment Tribunal’s decision was upheld by both the Employment Appeal Tribunal (EAT) and the Court of Appeal. The EAT addressed in more detail the fact that Uber had specified in their written contracts with the drivers that they weren’t to be considered as workers. The EAT held that the initial Tribunal had been entitled to reject Uber’s characterisation of the relationship within those written contracts.

The Supreme Court case

Uber appealed to the Supreme Court on broadly the same grounds as the other appeals, namely questioning:

  1. Whether the respondents (the drivers) were “workers” providing personal services to Uber; and
  2. If they were, what periods constituted their “working time”.

Uber’s main assertion was that they merely constituted a facilitator, acting as a go-between for drivers and passengers. Their argument was that any contract which was formed was between those two parties, and their 20% fee was to be regarded as a service charge for connecting the two. They centred arguments on the fact that drivers had huge amounts of flexibility, and the fact that Uber drivers interact directly with their riders.

The decision

The court held, as all of the appellate courts and the initial tribunal had done before it, that the drivers were in fact workers. The court looked at the actual relationship between the parties, rather than what had been specifically defined in their contracts. The court’s approach to this was, to put it informally, say ‘if it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck’. Taking into account the fact that Uber could penalise their drivers, had control over setting the fare, limited their interactions with passengers, and the fact that drivers had very limited control over their terms of service, the court defined the relationship as being Uber with whom the passengers contract, and Uber then engages drivers to transport the passengers who have booked.

Implications

Uber will have to come up with the money to pay drivers for the time that they had their app switched on, and so were “workers” who were on the clock. It is not impossible, based on their approach in this case so far, and in other cases in other jurisdictions, that Uber may regard this as being a very narrow issue relating to their practices from a few years ago, and may attempt to resist paying out compensation to a great number of their drivers.

Link to judgment: https://www.supremecourt.uk/cases/docs/uksc-2019-0029-judgment.pdf

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