Employee or Worker? The decision is in for Uber

23 January 2019

In the case of (1) Uber BV (2) Uber London Ltd (3) Uber Britannia Ltd v (1) Aslam (2) Farrar (3) Dawson and others, the Employment Tribunal and the Employment Appeal Tribunal (EAT) have all agreed that Uber taxi drivers are workers in relation to their employment status and not self employed contractors.

These decisions followed claim by two drivers acting for many that they should be entitled to minimum wage and paid holidays as workers under employment legislation.

Uber have defended this position from the outset (hence the EAT submission) and in the latest defence at the Court of Appeal put forward arguments that drivers are contractors providing services directly to passengers via a contract with Uber by means of an app.

By a majority decision, the Court of Appeal dismissed the appeal.

In deciding whether someone is an employee or worker, the fact that they signed a contract stating that they are self employed contractors is not conclusive. The Court held that the contract did not reflect the reality of the working relationship and should therefore be disregarded (following the case of Autoclenz where car washers were held to be workers even though they had all signed sub contractor contracts).

The Court of Appeal concluded that Uber was a transportation business to which the drivers provided their labour and through which the business delivers services to its customers and earns its profits.

In law, a self employed person will provide services to its client or customer.

The Court of Appeal said that Uber London Ltd was not the driver’s client or customer. The contractual relationship between the driver and Uber London provides that, once the driver had accepted the request, he or she would pick up the passenger from a notified location, and take them to their destination. Uber London argued they were only agent acting between the driver and the passenger.

One Judge however, disagreed with the majority. He said he saw no difference between Uber’s arrangements and other taxi cab providers, in particular, it being a common practice that taxis and minicabs are booked through an intermediary.

Uber has not yet reached its final destination in this matter.

Permission has been granted for a final appeal to the Supreme Court, in part because the split decision of the Court of Appeal and the important questions which need to be addressed.

The dissenting judge highlighted that this matter is a very current issue and has landed at a time when employment status is very much at the forefront of employment legislation debate in parliament. The question of whether those who provide services through platforms such as Uber’s should enjoy some or all of the rights and protections of worker status is “a very live one at present”. He believes according to current legislation, the drivers are not workers, but that legislation should be considered and updated to provide adequate protection for this group of people, especially where one party has superior bargaining power over the other.

In summary…
The Supreme Court will debate this matter for a final time and the judgment will have a profound affect not only on Uber, but the future of the status of workers and the self employed.

Acumen Business Law’s employment specialists often advise in these types of cases and will be ardently awaiting the decision of the Supreme Court.

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