A Case Summary of legal complaints brought against the huge global employer, Uber.
This fascinating case considers the employment rights of Uber drivers. Perhaps there will be wider implications for the gig economy as a whole? We take a look at what happened.
Intro
Amongst the many matters unfolding in the UK for 2021 is the decision of the Supreme Court in the case of Uber BV v Aslam. The decision was given by Lord Leggatt on Friday 19th February 2021. Read the case itself here.
The original Employment Tribunal case was brought in 2016. It was brought by a group of Uber drivers against Uber on very specific points:
• Did Uber owe the drivers holiday pay (under the Working Time Regulations 1998)?
• Had Uber under-paid the drivers (by reference to the National Minimum Wage Regulations 1999)?
• One driver also brought a claim on grounds that they had suffered a detriment for being a whistleblower (contrary to Part V of the Employment Rights Act 1996).
However, the issue before the Supreme Court was a preliminary one: the claims being brought before the Employment Tribunal could not be decided until it was determined whether or not the Uber drivers were “workers” or “self-employed/independent contractors”.
The Supreme Court has unanimously ruled that the Uber drivers are workers. This means that the Uber drivers who brought the original claim in 2016 are able to continue with their allegations relating to the Working Time Regulations, Minimum Wage and the Employment Rights Act in particular, the right to bring a whistleblowing claim.
The case is now returning to the Employment Tribunal.
Key Aspects of the Decision
Don’t Look At the Contract
For the purposes of employment law the UK differentiates between (1) employees (2) workers and (3) independent contractors (self-employed). It is possible to be in more than one category.
Each category has different rights for example: an employee may bring an unfair dismissal claim before an employment tribunal; a worker may not. A worker may bring a discrimination claim before the employment tribunal; a self-employed person may not.
To determine a person’s employment status we look at many different factors. A key aspect of the Uber case was that the Supreme Court said that the contract was not the starting point. The Supreme Court affirmed that an employment contract is not like other contracts; it is not a normal contractual relationship but categorised by subordination and dependency. This principle was established in the case of Autoclenz Ltd v Belcher (2011) UKSC 41 (you can read a summary of this landmark case here, and read the decision itself here).
It is because of the hierarchical relationship, special and particular to employment situations, that those caught in the employment relationship ought to be protected - said the Supreme Court. Therefore, rather than looking at the contract itself, the Supreme Court asked “are these the sort of people who deserve protection of the law and the protection of worker status?”. The key point is to look at the type of relationship parliament intended be covered by statutory employment protection.
The Uber Driver Scenario - Control
A key fact of this case was that the drivers were subordinate and dependent on Uber. They were not able to substitute their services and send in another driver instead. Even though Uber drivers have control over when they work and Uber does not dictate their times of work (differentiating them from an employee) the obligation to work personally means that there is a level of control by Uber.
This is in contrast to a Deliveroo driver, for example. When you book an Uber you are provided with the driver’s name and also the registration of their car. Under the mini cab regulatory regime, only that driver can drive that car. For a Deliveroo driver, there is no personal service required but rather a genuine ability to substitute someone else to do the work.
Due to the control factor, Uber drivers have been found to be subordinate and dependent enough to make them more than self-employed and also workers.
The Uber Driver Scenario - Working While Available
Another key matter to be established was when exactly were the Uber drivers working? Is it when the Uber app is on? Is it only if there is a passenger in the car? Is it as soon as a trip request is accepted by the driver?
The Supreme Court says that the drivers are working when they are available. It gave the example of fire fighters and care workers who are considered to be working during the times they are not physically at work but are on call, and drew a similarity. Therefore, as long as the driver has the Uber app on, they are working. This is regardless of whether they are actually driving or have a passenger on board.
This is not the end of the matter though. There is a point that remains unresolved in this area. What happens if the driver has multiple apps? Can they be “available for work” for Bolt, Uber, and Kabbee at the same time? The necessary facts to determine this matter were not before the employment tribunal in the original claim. The point therefore remains unresolved.
Application of the Law
The Supreme Court’s decision in the Uber case has already been applied. In a judgment dated 22 April 2021, in the case of Addison Lee Ltd v Lange, the Court of Appeal refused to grant Addison Lee permission to appeal against the Employment Tribunal and also the Employment Appeal. The Employment Tribunal and the Employment Appeal Tribunal had found that the Addison Lee drivers were workers. However, Addison Lee refused to accept it. On having its appeal rejected for the second time, Addison Lee has had to accept that, as with the Uber drivers, Addison Lee drivers are workers and therefore also entitled to worker statutory protections such as holiday pay and national minimum wage. You can read the Addison Lee judgment here.
There are many articles online about Uber being faced with big compensation payouts as a consequence of the Supreme Court decision. However, Uber says that the decision of the Supreme Court only applies to the Uber drivers who brought the original claim and that its app processes have now changed to a significant enough level to potentially render the Supreme Court’s findings inapplicable.
Our advice to anyone who believes they may be affected by anything we have written about in this blog or who considers they may have similar facts in their own working scenario, is to join a union if you are not in one already. There are unions such as the ACDU (App Drivers & Couriers Union) and also the IWGB (Independent Workers Union). It is likely from Uber’s response that a worker will need to litigate or at least threaten to litigate in order to make a claim applying the law.
If you have any questions on any employment matters contact us directly via email employment@wainwrightcummins.co.uk, we are here to help.
