SC upholds finding that Uber drivers are workers
Wednesday 24th February 2021
The SC has upheld the ET’s finding that Uber’s drivers have worker status and are therefore entitled to various employment rights, including the national minimum wage, 5.6 weeks of paid holiday and the protection of whistleblowing legislation.
Mr Aslam and Mr Farrar were selected as test cases for a preliminary hearing before the ET, which examined their employment status. The ET decided that the definition of worker under the ERA 1996 was met, with particular focus on the amount of control Uber exercised over how the drivers operated.
In the ET’s view any driver who (a) has the Uber app switched on, (b) is within the territory in which he or she is authorised to work, and (c) is able and willing to accept assignments is (for so long as those conditions are satisfied) working for Uber under a “worker” contract.
Uber unsuccessfully appealed to the EAT and CA, arguing that it was an agent providing only a technology platform through which drivers can provide transport services to passengers on a self-employed basis. The CA considered there to be a “high degree of fiction” in the wording of the contractual documentation and, given the operational realities along with Uber’s public marketing statements, the ET was correct to conclude that Uber drivers were workers personally performing services for Uber. Uber was not a client or customer of any profession or business undertaking carried on by the individual driver.
The SC unanimously held that when assessing “worker” status, the purpose of the legislation (being protection for vulnerable individuals in a dependent position) must be the starting point and not the contractual documentation.
While acknowledging that drivers had some autonomy, being free to choose when and where to work, the SC focused on several “control” related factors which resulted in worker status. These included Uber dictating the contract terms, including those relating to pay and constraining a driver’s freedom to choose when to work once logged into the app. Uber also exercises significant control over how services are delivered, including reliance on the Uber App as well as monitoring driver performance. Additionally, drivers are not able to freely communicate with their passengers.
Noteworthy was the SC’s observation that drivers are in a position of dependency having little or no ability to improve their economic position through “professional or entrepreneurial skill”, being unable to “offer a distinctive service or set their own prices”. Further, for the purposes of working time, the SC agreed that an Uber driver is to be considered as “working” where conditions (a), (b) and (c) outlined above are satisfied.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.