Supreme Court Determines Uber Drivers Are Workers

The Supreme Court has determined that Uber drivers are ‘workers’ for the purposes of the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998 in the case of Uber BV and ors v Aslam and ors.

The Supreme Court’s decision is the conclusion of a long running saga in this case which started back in 2016. Uber drivers brought employment tribunal claims in relation to failures to pay national minimum wage, provide paid annual leave and whistleblowing detriment. In order to bring these claims, the drivers had to be ‘workers’ within the meaning section 230(3)(b) of the Employment Rights Act and the equivalent provisions in the National Minimum Wage Act and the Working Time Regulations.

Uber has argued all along that they are a technology platform which merely facilitates the provision of private vehicle hire between passengers and drivers and that the drivers are self-employed contractors. The Supreme Court however disagreed with this argument, unanimously dismissed Uber’s appeal and determined that Uber drivers are workers.

In making its judgment, the Court pointed out that that the rights asserted by the drivers are not contractual rights, but rights created by legislation. It is therefore wrong in principle to treat the written agreement as a starting point in determining whether an individual falls within the definition of ‘worker’, it is the practical arrangements which are key to that analysis.

The Supreme Court emphasised five aspects of the employment tribunal’s findings at first instance that it considered justified its conclusion that the drivers were workers:

• It is Uber that sets the fare and drivers are not permitted to charge more than the fare calculated by the Uber app. It is therefore Uber which dictates how much drivers are paid for the work they do.
• The contract terms on which drivers perform their services are imposed by Uber and drivers have no say in them.
• Once a driver has logged onto the Uber app, the driver’s choice about whether to accept requests for rides is constrained by Uber who monitor the driver’s acceptance rate and penalise the driver if too many trip requests are declined or cancelled.
• Uber exercises significant control over the way in which drivers deliver their services, for example by use of a ratings system that may lead to warnings and eventual termination for the driver.
• Uber restricts communications between passenger and driver to the minimum necessary to perform the particular trip and takes active steps to prevent drivers from establishing any relationship with a passenger capable of extending beyond an individual ride.

The Court also confirmed the tribunal’s finding that the drivers’ working time for the purposes of the Working Time regulations and ‘unmeasured work’ for the purposes of National Minimum wage legislation, includes all of the time that they are in the area in which they are authorised to work, logged into the app, and ready and willing to accept work.

The decision will certainly impact employers operating in the gig-economy but is likely to have a wider impact for employers generally who engage freelance or self-employed contractors. We suggest that employers undertake an audit of these types of working arrangements to determine the likelihood that such individuals could be considered to be ‘workers’, and the risks associated with potential claims. This will enable employers to be proactive in addressing these liabilities going forward.