Uber drivers are ‘Workers’
The Employment Appeal Tribunal (EAT) has upheld that Uber drivers are workers for the purposes of their claims under the Employment Rights Act 1996, Working Time Regulations 1998 and the National Minimum Wage Act 1998. This means Uber drivers are now entitled to basic employment rights, including national minimum wage and paid annual leave.
The appeal case, Uber BV v Aslam, which was originally brought in the Employment Tribunal in 2016, was based on a claim by Mr Aslam that he should be paid the minimum wage and receive annual leave while working as a driver for Uber. The respondent, a Dutch incorporated company which is part of the Uber Group, claimed that Mr Aslam and drivers who were also engaged by the company were self-employed contractors, and were therefore not entitled to employee rights.
The EAT Judge ruled that when the Uber app is turned on, Uber drivers were obliged to “be able and willing to accept assignments” which includes the acceptance of “at least 80% of trip requests”. If that requirement was not met then the driver would suffer a penalty if they cancelled a trip once it had been accepted via the app. Accordingly, it was held that these requirements were indicative of worker status and seemingly at odds with the notion that the drivers were in business of their own accord as self-employed.
Uber sought to argue that the requirements were indicative of worker status and stemmed from the regulations involved with providing private hire licensing. This was contradictory however, as the regulations do not require Uber to carry out an interview and induction process, which Uber currently have in place when hiring drivers.
Furthermore, the EAT highlighted the fact that Uber were not acting as an agent between the driver and the passenger. The EAT reasoned that, whilst ‘gaps’ did exist in the chain if the driver’s Uber app was off, “this was not fatal to their ‘worker’ status when the app was turned on.”
It is highly likely that Uber will appeal the EAT decision and potentially seek to take the case straight to the Supreme Court. If they do, the case will be heard in conjunction with the Pimlico Plumbers case, which deals with the same ‘worker or self-employed’ issue.
TFL’s decision not to renew Uber’s license illustrates that both the law makers and regulatory bodies are more willing to take action against businesses who use a ‘gig economy’ business model. Therefore, employers should watch Uber’s legal fortunes closely and seek guidance around the engagement of freelance contractors.
If you would like further information on this topic, you can contact Millie Kempley or another member of the employment team on 0345 070 6000.