In Uber BV and others v Aslam and others, the EAT upheld the decision of an employment tribunal that Uber taxi drivers are workers and entitled to the National Minimum Wage and paid holiday.

Readers should consider our November 2016 bulletin for a full discussion of the employment tribunal decision. In summary, Uber argues that it is simply a technology company offering an on-line platform to connect self-employed drivers to those who wish to hail a cab. Complex contractual documentation sets out this purported arrangement between Uber BV and individual drivers. Uber contended in the employment tribunal that a contract is made between the driver and the passenger for every trip and that it is merely an agent for the drivers. Uber London Ltd holds the Private Hire Vehicle (PHV) licence and there is no written contract between this company and the drivers.

But the employment tribunal was scathing about the written documentation, describing the idea that Uber drivers were running their own small businesses as “faintly ridiculous”. It decided that the time during which the drivers were in their authorised territory, signed into the Uber app and ready and willing to accept work was “working time” and should be counted when calculating whether the drivers are being paid the National Minimum Wage.

The EAT agreed. It held that the employment tribunal was entitled to find that there was no contract between the drivers and the passengers on the basis that the drivers were never given passenger details and could not establish business relationships with their passengers or negotiate terms with them. It held that the tribunal was not bound to assume that the written documents accurately reflected the relationship between the parties and that the correct approach was to examine the reality of the situation, focusing on the extent to which the drivers are controlled by Uber and integrated into its organisation. The EAT was not persuaded by Uber’s argument that the tribunal should not have taken the PHV licence requirements into account and commented that Uber had gone beyond these by interviewing and inducting drivers, not sharing passenger details with drivers and operating a complaints procedure without referring to the drivers.

The EAT considered whether the drivers might only be working when they were actually carrying passengers. It noted that it was theoretically possible for drivers to accept non-Uber bookings during the period they were signed into the app. However, the EAT agreed with the tribunal that the drivers’ waiting time was working time, given that drivers are given warnings by Uber for not accepting a booking and that a driver could ultimately be suspended or blocked from the app for this.

This decision was expected and follows a line of recent cases where worker status has been established, despite the fact that the relationship was, in these cases, clearly labelled in the written contract as a contractor-customer relationship. Uber is reported to have lodged an appeal direct to the Supreme Court (“leapfrogging” the Court of Appeal).