In an important test case* for the entire ‘gig economy’ it has been held that Uber taxi drivers are entitled to employment rights that apply to ‘workers’.
The group of current and former Uber drivers had brought employment tribunal claims last year, in which they argued that they were workers of Uber and that the company had failed to pay them the national minimum wage or provide them with paid annual leave.
Uber had disputed the claims on the grounds that the drivers were self-employed and were not entitled to ‘worker’ rights. Uber argued that it merely provided the technology platform that allowed the drivers to find and agree work with individual passengers. The Employment Tribunal had rejected Uber’s arguments. It found that Uber did not operate as just a technology business. The reality of the business operation was that there was a pool of workers on which Uber depended to provide a private hire vehicle service. The arrangements that had been put in place meant that the drivers were workers so they should have been entitled to national minimum wage, paid holiday and other rights.
Uber’s appeal against that decision has now been dismissed by the Employment Appeal Tribunal.
The case highlights the ability of the courts to look behind the contractual documentation, which had described the drivers as self-employed contractors who offered their services to passengers via the Uber app. It was held that those labels could be disregarded as they did not reflect the reality of the working arrangements.
In practice, the drivers signed into the app to be ‘on-duty’ and to accept bookings. Whilst Uber had maintained that there was no commitment to carry out work, it was found to be a rule that at least 80% of trip requests had to be accepted for the driver to “retain their account status”, or as it might be understood in this context ‘keep their job’.
Obviously the biggest concern for Uber will be the additional costs and calculating how they will establish the ‘working time’ of the drivers. It was held that this was not limited to the time spent driving a customer after accepting a booking but it also included the time spent waiting for the booking whilst signed into the app within the territory the driver was authorised to work. That was ‘working time’ as the driver was regarded as being at Uber’s disposal and able to accept assignments.
The counter argument raised by Uber that even while signed into the app the driver could refuse work, or even carry out work for other taxi services, was regarded as a “difficult point”, but again the expectation that the driver accept at least 80% of trip requests when signed in was sufficient to show the time spent could be regarded as ‘on duty’.
The Uber decision is the latest in a run of recent cases that have cast doubts on whether a business model that relies on a ‘self-employed’ workforce can avoid the statutory employment liabilities that apply to workers. Due to the wider consequences and general importance of the findings, it would seem inevitable that there will be a further appeal to the Court of Appeal and possibly to the Supreme Court. It may yet take years for the final outcome but in the meantime, it is likely that more and more claims for ‘worker’ rights will be submitted in the Employment Tribunal.