News Updates

EAT upholds finding that Uber drivers are workers

Monday 13th November 2017

The EAT 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 appealed to the EAT, arguing that the ET had failed to properly take into account a driver’s ability to refuse or cancel trips or even work for others. Uber argued that it only provided a technology platform through which drivers can provide transport services to passengers on a self-employed basis, but that Uber itself was not a transport provider.

Uber maintained that the ET did not understand the nature of the agency relationship with its drivers and should not have disregarded the written contracts, which it considered reflected their role as an agent. Uber considered that the contractual arrangements allowed drivers to access the app and in return they were paid a percentage of the fare as commission. It did not create a contract with drivers to perform personal services.

The EAT dismissed the appeal, holding that the ET was “entitled to reject the label of agency and the characterisation of the relationship in the written documentation”. The ET did not deny the possibility of agency, but rather after examining all relevant factors, found that this was not the true position in this case. Drivers were not able to grow their “businesses”, they had no ability to negotiate terms with passengers and had to accept work on Uber’s terms.

The EAT considered the ET had been entitled to find that the drivers were integrated into the business and was not required to disregard factors merely because they may have arisen from a regulatory regime. Drivers were expected to accept at least 80% of trip requests when signed into the app. This very high percentage supported the conclusion that once signed in, drivers were at the disposal of Uber.

Uber has indicated it will appeal the decision and we will report further developments in the case.

All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.