In a spirited and strongly worded judgment, the employment tribunal has held that Uber drivers are not self-employed independent contractors, but are in fact workers for the purposes of the Employment Rights Act 1996. Worker status brings with it the right to receive the national minimum wage, paid annual leave, and whistleblower protection. This case has been seen by many as a ‘test’ case and although the decision is highly fact specific to Uber’s business model, it will have implications for the wider ‘gig economy’.
Uber’s essential argument was that it is merely a technology platform, and it does not provide transportation services. Its terms and conditions are littered with such affirmations. However, the Tribunal was critical of this, stating that this did not reflect the reality of the situation and Uber had resorted to “fictions, twisted language, and even brand new terminology” in its documentation. The Tribunal described the case as an “excellent illustration of the phenomenon… of ‘armies of lawyers’ contriving documents in their clients’ interests which simply misrepresent the true rights and obligations on both sides”. If Uber’s submissions were correct, this would mean that Uber in London was a mosaic of 30,000 individual small businesses, linked only by a common technology platform. The Tribunal described this as “faintly ridiculous”.
Looking specifically at the relationship between the drivers and the company, the Tribunal held that the drivers provide the skilled labour through which Uber delivers its services and earns its profits. Some of the relevant factors behind this conclusion include:
- Uber purports to be the drivers’ agent, and yet asserts that it has sole and absolute discretion to accept or decline bookings;
- Uber interviews and recruits drivers;
- Uber controls the key information, e.g. passenger’s surname, contact details, and intended destination. This is not available to the driver;
- Drivers are required to accept and/or not cancel trips. Drivers in breach of those requirements are given warnings and logged off;
- Uber sets the default route and the driver must justify any deviations.
- Uber fixes the fare;
- Uber imposes numerous conditions on drivers (e.g. limiting the choice of acceptable vehicles); instructs them how to work and controls them in the performance of their duties;
- The rating system amounts to a performance management / disciplinary procedure;
- Uber determines rebates, often without even involving the driver; and
- Uber handles complaints made by passengers, including complaints about the driver.
As regards working time, the Tribunal found that a driver is ‘working’ when he has switched on the App, is in the territory in which he is licensed to use the App, and is ready and willing to accept trips. Uber’s argument that drivers are only working when they are driving passengers was rejected; it is an essential part of Uber’s business that there is always a pool of drivers ready to be called upon when demand for driving services arises, so being available is an essential part of the service rendered by the driver. The Tribunal did agree with Uber however that time spent travelling to and from the territory (i.e. to and from home) would not be part of working time in these circumstances. These findings will have implications for the calculation of the national minimum wage payment, as at present drivers receive fares from customers but no remuneration for time spent ‘waiting’.
Uber has indicated that it intends to appeal the decision, however the opportunity for doing so may be somewhat limited by the clear factual findings made by the Tribunal.