An employment tribunal has recently upheld a claim by Uber drivers that they are ‘workers’, entitling them to rights under national minimum wage and working time legislation.

Aslam and others v Uber BV and others, ET

Facts

Uber developed a smartphone app to enable customers to order a taxi and pay the fare. Uber engages drivers to provide the taxi service, who are treated as being self-employed. Uber’s agreement with its passengers states that the contract for the provision of the taxi service is between the driver and the passenger.

A group of Uber drivers brought claims for unlawful deductions from wages and a failure to provide paid annual leave. Two of the drivers were selected as test claimants.

The tribunal carried out a detailed analysis of Uber’s business model and the relationship between the drivers and Uber to determine whether the drivers should be categorised as ‘workers’.

Drivers supply their own vehicles and are responsible for the running costs. They are not required to work any minimum number of hours, but once they have signed into the app they are regarded as being ‘on duty’ and available to accept bookings. Drivers are not required to wear a uniform. Fares calculated using GPS data from the driver’s phone are paid directly by the passenger to Uber, via the app. Drivers are paid weekly by Uber according to the fares they have earned, minus a ‘service fee’ of 20-25% for the use of the app. Uber deals with any complaints about fares. Drivers are subject to a rating system and if their rating falls below a set average, their access to the app is withdrawn.

Tribunal decision

On the basis of their analysis of the working relationship, the employment tribunal concluded that there was sufficient ‘control’ exerted over the drivers by Uber to establish worker status. The drivers should be regarded as ‘workers’ during the periods they are logged on to the app and are available to accept fares, and these periods also qualified as ‘working time’. For national minimum wage purposes, the drivers were engaged in unmeasured work.

The tribunal rejected Uber’s attempt to rely on previous authorities where worker status had not been established, including previous cases involving taxi services. It was satisfied that the facts of those cases were sufficiently different to the facts of the Uber case. In relation to other authorities, including the Stringfellows lap dancer case, the tribunal stated that the work carried out by the claimants in those cases was ancillary to the principal service offered by the ‘employer’. In contrast, the Uber drivers perform the very service which Uber exists to provide.

According to the tribunal, the contractual documentation between the parties involved both “fictions” and “twisted language” in its description of the legal relationships and it did not correspond to the reality of the relationship between Uber and the drivers.

Consequences

It is important to bear in mind that as a first instance decision, this decision is not binding on any future cases. Uber has also indicated that it plans to appeal the tribunal’s decision. Waiting in the wings is another claim being threatened by couriers against Deliveroo, whose business model appears to have significant parallels with that of Uber. However, decisions concerning employee or worker status are notoriously fact-sensitive, so it does not necessarily follow that Deliveroo couriers or their equivalents in other app-based services will succeed in their claims.

The Business, Energy and Industrial Strategy Select Committee has recently launched an inquiry into the future world of work and rights of workers, including issues relating to the ‘gig economy’ (see our ‘quick fire’ item for further details of the inquiry).