21 December, 2018
The Court of Appeal upheld the decision of the Employment Appeal Tribunal in Uber BV v Aslam & ors confirming Uber drivers' status as workers as opposed to self-employed contractors.
Using an app provided by Uber, passengers can book rides with drivers. The drivers are free to choose when they work and when they make themselves available to take bookings. Drivers are required to accept booking if they make themselves available, and if they reject or cancel bookings too often they can be disconnected from the app for a specified time by Uber.
A number of drivers brought Employment Tribunal claims against the Uber group for unlawful deduction from wages due to the failure to pay the national minimum wage and failure to provide paid annual leave. In order to have standing to bring the claims the drivers had to show they were 'workers' within the meaning of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998.
Uber argued that they merely provided the technological platform allowing drivers to locate and accept rides with individual passengers. However, the Tribunal held that this characterisation of Uber's operational model, and the contractual documentation that surrounded it, did not reflect the reality of the working arrangements between Uber and the drivers. And that the drivers should be considered to be working for the purposes of the legislation whenever they were in the territory in which they were authorised to drive.
Uber unsuccessfully appealed to the Employment Appeals Tribunal, and referred the matter to the Court of Appeal.
By a majority, the Court of Appeal upheld the Tribunal's findings. They confirmed their agreement that the drivers were 'workers' within the meaning of the legislation. The inconsistency between the contractual terms and the practical reality of the relationship between the parties meant that the contract could be disregarded in accordance with the principle established in Autoclenz Ltd v. Belcher. In a dissenting judgment, Lord Justice Underhill expressed his view that there was no inconsistency between the contractual terms and the working arrangements. He does not believe that the possibility of being disconnected from the app if trips were refused or cancelled implied a positive contractual obligation on the drivers.
The Court of Appeal granted Uber the right to appeal to the Supreme Court.
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