It has been confirmed that Uber have failed in their attempt to overturn a judgment that their drivers should be deemed “workers” rather than self-employed contractors and that they are therefore entitled to certain minimum employment rights including minimum wage and the right to at least 5.6 weeks’ paid time off on a pro-rated basis for time worked.
The original judgement was published in October 2016 and our comments on that can be found here. The UK employment appeal tribunal has upheld the findings of that previous decision.
Workers are not entitled to the full suite of UK employment rights and do not, for example, benefit from the right not to be unfairly dismissed after two years’ service.
Despite Uber clearly categorising the relationship as that of self-employment in relevant paperwork, it was considered correct to look behind this to the “reality of the situation” and the practical arrangements actually in place, which were more consistent with that of a worker relationship. The Uber drivers were deemed to be incorporated into Uber’s business of providing transportation services, rather than working in business on their own account.
It was deemed important to the issue of control that there were obligations on drivers to accept trips offered by Uber – an 80% acceptance rate was expected - and that they should not cancel trips once confirmed.
It was found that Uber drivers should be considered to be engaged on “working time” (and therefore entitled to minimum wage, for example) whenever they have the Uber app switched on and were available and willing to accept rides. This appears to be the case even if a driver is also logged into one or more other apps through which they could equally accept an assignment at any given time. This raises issues around whether it is correct that an individual could technically claim minimum wage from each gig economy platform they happen to log into at any one time (even when they are not actually carrying out any work on any or all of them). It was made clear that this would be highly fact- and context-specific but that the scale of Uber’s business was a factor suggestive of this being the correct analysis in this instance. The same approach may not be taken for other platforms which perhaps do not have such a high market share, where users of the various platforms are more clearly advertising themselves as being available to work not just for one app, or where it is less likely that assignments on that app would be preferred over others which may be available.
This is almost certainly not the end of the matter, as the case is expected to be allowed to be pursued on appeal to the UK’s Supreme Court, the decision of which will be most telling for the gig economy industry in the UK.
For all companies operating their business as simply a technology platform accessed by contractors running their own enterprise, this ruling reinforces the importance of self-employed contractors being fully in control of how and when they perform their services, there being no penalties for failing to carry out any assignments offered and having no restrictions on being able to carry out services for any third parties.