Employment Case Update: Aslam and others v Uber BV and others ET/2202550/15

Facts

In July 2016, the GMB union (which represents private hire drivers), brought two ‘test’ cases to the Tribunal. The cases were brought on behalf of two Uber drivers (“Drivers”), who claimed that they should be treated by Uber as ‘workers’ under the Act. The Drivers specifically raised claims in relation to the national minimum wage (“NMW”) and statutory holiday pay, claiming that they had been underpaid the NMW and denied rights under the Working Time Regulations 1998 (“WTR”).

Uber submitted that the Drivers were not ‘workers’ as they do not work for the company, but are instead self-employed contractors who work for themselves. Uber claimed that it merely acted as a technology platform providing a kind of agent/introductory service, facilitating introductions to clients via its Uber Application.

Decision

Despite Uber’s submission and the construction of the Drivers’ contracts of employment, the Tribunal found that the reality was the Drivers were working for the company, rather than working with the company. It stated:

“The notion that Uber in London is a mosaic of 30,000 small businesses linked by a common ‘platform’ is to our minds faintly ridiculous”.

In considering the reality of the relationship between Uber and the Drivers, the Tribunal noted thirteen factors which influenced its decision, as follows:

1.    Uber retains the ability, within its sole discretion, to accept or decline passenger bookings;
2.    Uber interviews and recruits its drivers;
3.    Uber controls key passenger information, which is not shared with its drivers;
4.    Uber requires drivers to accept and not to cancel trips – it enforces this by ‘logging off’ drivers who breach these requirements;
5.    Uber decides the default route for each trip and, should a driver use an alternate route, they may be penalised;
6.    Uber sets the fare and drivers are unable to negotiate a higher sum with the passenger;
7.    Uber imposes various conditions on drivers (including restrictions to their vehicle choice), instructs drivers as to how to undertake their work and controls the performance of their duties;
8.    Uber subjects its drivers to a rating system in what substantially amounts to a performance management/disciplinary procedure;
9.    Uber determines rebates to passengers, at times without first consulting the driver, despite the fact it may have a financial impact upon them;
10.    Uber previously had in force guaranteed earnings schemes, however it is noted that these have been discontinued;
11.    Uber accepts the risk of loss to which its drivers would be liable if they were genuinely self-employed, an example of this would be in the case of fraud;
12.    Uber handles passenger complaints, including complaints made against the driver; and
13.    Uber reserves the ability to unilaterally amend its drivers’ terms;

The Tribunal held, in relation to any driver who has the Uber Application switched on; is within the area in which they are allowed to work; and are able and will to accept assignments, they will be a ‘worker’ for the purpose of the Act.

Comment

Whilst ‘workers’ are not entitled to the full array of rights which ‘employees’ receive, worker status does entitle the Drivers to additional rights, including but not limited to:

–    the national minimum wage (currently: £7.20 per hour for individuals over the age of 25);
–    5.6 weeks of paid annual leave;
–    rest breaks; and
–    the right to a pension contribution from an employer, under the auto-enrolment scheme.

There will be a further hearing before the Tribunal to calculate the amount of holiday and pay that the Drivers are entitled to receive.

The decision is only a first instance decision and is therefore not binding upon businesses or subsequent cases. Furthermore, in an email to its customers on 29 October 2016, Uber confirmed that it would be appealing the outcome. However, commentators have indicated that this may have an impact on those involved in the so-called ‘gig economy’ (businesses like Handy and Deliveroo which create temporary ‘freelance’ positions with ‘self-employed’ individuals for short-term engagements and ‘odd jobs’), who are likely to be concerned by the outcome of the case.

What is noteworthy from the decision is the fact that the Tribunal acknowledged the ability for Uber, in principle, to devise a business model whereby its drivers are genuinely self-employed contractors.  This is indicative of subsequent decisions being considered on a case-by-case basis, turning on the specific terms and arrangements between the contractor and the company for which they work.

_{Finally, companies should avoid using ‘carefully crafted documentation’ in an attempt to circumvent the Act. The underlying point of the judgment is that the agreement must reflect the reality of the relationship between a company and the individual providing the service. In that sense, it is not a ground-breaking judgment as many previous cases have made the same point.}

Related Cases

_{Attention to similar business models relating to the ‘gig economy’ has been also been gaining traction. For example, HMRC is currently undertaking an enquiry into the levels of pay received and the status of ‘self-employed’ couriers at Hermes, following an investigation undertaken by the Guardian. Deliveroo has also been in the news after it attempted to change its riders’ pay from an hourly rate (plus £1 per delivery), to a fixed fee. Deliveroo backtracked from this following protests (supported by the Independent Workers Union of Great Britain) and significant media attention.}

_{Written by Merrill April, Sarah Martin and Emily Parker. For more information, please contact a member of our Employment team.}