Uber drivers are “workers”; Employment Appeal Tribunal confirms today

Jason Galbraith-Marten QC

Sheryn Omeri

Today, the Employment Appeal Tribunal handed down its landmark decision in Aslam & Farrar v Uber confirming that Uber drivers are “workers” and entitled to be paid minimum wage, holiday pay and not be subjected to detriment if they blow the whistle. The judgment is here.

Jason Galbraith-Marten QC and Sheryn Omeri represented the Claimant Uber drivers, Yaseen Aslam and James Farrar, both members of the Independent Workers of Great Britain Union (IWGB), instructed by Paul Jennings and Rachel Mathieson of Bates Wells Braithwaite. The case was heard by Her Honour Judge Eady QC who dismissed Uber’s appeal against the ruling of the first instance Employment Tribunal of 28 October 2016 that any Uber driver who had the Uber app switched on, was within the territory in which they were authorised to work (here, London) and was able and willing to accept assignments was working for Uber London Ltd under a “worker” contract and entitled to be paid minimum wage and holiday pay by Uber.

Uber had appealed to the Employment Appeal Tribunal, arguing that the first instance Employment Tribunal had been wrong to disregard the written contractual documentation between Uber BV (the Dutch parent company which owns the rights to the Uber app) and drivers and between drivers and riders which made clear that Uber London Ltd provided its services to drivers as their agent. Uber also argued that the Employment Tribunal had been wrong to take account of the regulatory requirements imposed on Uber London Ltd as a condition of its Private Hire Vehicle Operator’s licence as demonstrating that Uber London Ltd exercises control over drivers consistent with them being workers rather than independent contractors. Finally, Uber argued that the Employment Tribunal had made a number of internally inconsistent findings about drivers being required to work for Uber and that it had failed to take account of other matters which Uber said indicated the drivers were independent contractors.

In dismissing Uber’s appeal, the Employment Appeal Tribunal held that the Employment Tribunal had been right to reject Uber’s characterisation of the relationship between Uber London Ltd and the drivers as one of agency as set out the written contracts. The Employment Tribunal had relied on the 2011 Supreme Court case of Autoclenz v Belcher, according to which, in the context of employment law, where there is an inequality of bargaining power between those who may be workers and those who may be their employers such that the written contracts drafted by the putative employers do not reflect the reality of the relationship, the Court can disregard the written contracts and determine for itself what the true contractual arrangements between the parties are. On the basis of that case, the Employment Tribunal had correctly found that the written documentation had been drafted by an ‘army of lawyers’ engaged by Uber and did not reflect the reality of the situation. The reality is that Uber drivers are incorporated into Uber’s business of providing transportation services, and are subject to controls which point away from the idea that they are independent contractors who were in a direct contractual relationship with a passenger each time they accept a trip.

The Employment Appeal Tribunal also confirmed that the Employment Tribunal had been entitled, in concluding that drivers were subject to control by Uber, to look at aspects of the relationship between Uber London Ltd and Uber drivers which derived from Uber London Ltd’s regulatory obligations such as the obligation to record passenger details and to operate a complaints procedure. In any event, the EAT found that Uber’s business model goes beyond these minimum requirements and does so by choice, thereby exercising control over drivers. For example, Uber records passenger details but does not pass them on to drivers. It also stops drivers from providing their contact details to passengers, which drivers would be permitted to do if they were independent contractors contracting with each passenger they transport. The evidence also indicated that Uber resolves passenger complaints without consulting with drivers even where the resolution is adverse to the driver.

Finally, the Employment Appeal Tribunal dismissed Uber’s arguments that the Employment Tribunal had made inconsistent findings and that it had not taken matters which Uber said pointed to drivers being independent contractors into account. The Employment Tribunal had been entitled to conclude (on the basis of the evidence before it) that there was a requirement on Uber drivers to accept trips offered to them if they had the app switched. This requirement was enforced by Uber logging off from the app, any driver who refused three jobs in a row. Uber policies also told drivers that they were not to cancel trips once they had accepted them. If drivers were truly independent they would be able to refuse or cancel jobs as they wished. The fact that they are not free to do this means that they are under Uber’s control and working for Uber rather than carrying on a business on their own account.

Importantly, the Employment Appeal Tribunal finally concluded that assessment of the time for which Uber would be required to pay minimum wage for example to any given driver would depend on the specific facts of that driver’s case. At times where, in between accepting trips from Uber, a driver held himself or herself out as able and willing to accept jobs for another company, he or she may not be considered “working” for Uber.

The decision of the Employment Appeal Tribunal re-affirms the principle that employers cannot exploit their greater bargaining power by engaging “armies of lawyers” to draft agreements which they compel their workers to sign where such agreements seek to obscure the reality in order to deny such workers their rights. Where the reality reflects an employer-worker relationship, it does not matter what the written documents record. Courts will look to the reality and enforce employment rights accordingly.

Tom Gillie, a barrister at Cloisters said “this is an extremely important judgment for the 40,000 Uber drivers in the UK, as well as for others working in the “gig economy.” It demonstrates that while Uber technology presents great opportunities for job creation and provides a convenient service to passengers, it will not be permitted to deny the rights of the very people, the drivers, who allow it to function.”

The case is one of the many in which Cloisters members have been involved.

Jason Galbraith-Marten QC and Sheryn Omeri are experts in this field.

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Media enquiries: 020 7827 4000 and ask for Sheryn Omeri

Alternatively:

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