Dere Street’s Pupil Deck
February 26, 2021
This week’s blog is brought to you by Rebecca Cowell – pupil to Charles McCain
On 19 February 2021, the Supreme Court handed down judgment in the highly-anticipated employment case.
Background to the dispute
In summary, the dispute concerned the employment status of the drivers who provide their services through the Uber App.
The first question was whether or not the drivers were classed as “workers” for the purposes of employment legislation, and whether they should enjoy the various benefits afforded to those who come within that definition. The definition of a “worker” as laid out by Section 230(3) of the Employment Rights Act 1996 includes an individual who work under a contract of employment, or any other contract “whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of that contract that of a client or customer of any profession or business undertaking carried out by the individual”. Benefits include receiving at least national minimum wage and annual paid leave.
The second question was what time counts, if drivers are “workers”, as working time for the purpose of the relevant rights.
Background of proceedings
Uber BV owns the technology behind the Uber app. Uber London Ltd is a UK subsidiary licensed to operate private hire vehicles in London. The claimants, Mr Aslam and Mr Farrar, at the relevant times were licensed to drive private hire vehicles in London and did so using the Uber app.
The original employment tribunal decision ruled in favour of the claimants (the drivers), establishing that they were workers. Their working hours were defined as being when their app was switched on, they were in working territory, and ready to accept trips.
The decision was upheld on appeal, first in the employment appeal tribunal and subsequently in the Court of Appeal. Both appellate courts held that the employment tribunal had correctly defined the relationship between Uber and the claimants.
Supreme Court Decision
The Supreme Court unanimously dismissed Uber’s appeal. The court explained that it was Uber with whom the passengers contract, and Uber then engages drivers to transport the passengers who have booked.
The court considered that the correct approach is to consider the relevant employment legislation. That purpose is to give protection to vulnerable individuals who have little or no say over their pay and working conditions, because they are in a subordinate and dependent position in relation to a person or organisation which exercises control over their work.
The judgment emphasised five aspects of the findings made by the employment tribunal which justified its conclusion that the claimants were working for and under contracts with Uber:
- Where the ride is booked through the Uber app, it is Uber that sets the fair and the drivers are not permitted to charge more than the fare calculated by the Uber app. It is therefore up to Uber to dictate how much drivers are paid for the work.
- The contract terms on which the drivers perform their services are imposed by Uber and drivers have no say in them.
- Once a driver has logged onto the Uber app, the driver’s choice about whether to accept requests for rides is constrained by Uber].
- Uber exercises significant control over the way in which drivers deliver their services.
- Uber restricts communications between passenger and driver to the minimum necessary to perform the particular trip and takes active steps to prevent drivers from establishing any relationship with a passenger capable of extending beyond an individual role.
All of the above points, the court considered, were indicators of the drivers being workers rather than independent contractors.
On the second issue, the court held that all of the lower courts had been to find that time spent by the claimants working for Uber was not limited to periods when they were actually driving passengers to their destinations, but included any period when the driver was logged into the Uber app within the territory in which the driver was licensed to operate and was willing to accept trips.
