The Supreme Court has held in Uber and others v Aslam and others that the Uber drivers are "workers" for the purpose of rights under the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998.
It concluded that as long as the drivers have turned on the app, are ready and willing to accept fares and are in the territory in which they are authorised to drive they will be considered to be workers.In determining whether or not the drivers were workers rather than independent contractors (as argued by Uber) the Supreme Court focused on five factors identified at first instance by the Employment Tribunal which justified its conclusion that the drivers were working for and under contracts with Uber. In analysing the relationship existing between the parties it was relevant that Uber dictates how much the drivers are paid for what they do (by setting the fare which the drivers are not permitted to change), as well as the contract terms (which are imposed by Uber and in which the drivers have no say).
Uber also constrains the drivers' freedom to choose when to work once logged in to the app by monitoring the driver's rate of acceptance (and cancellation) of trip requests, and imposing what amounts to a penalty if too many trip requests are declined or cancelled by automatically logging the driver off the Uber app for ten minutes, preventing them from working until they are allowed to log back in. Uber also controls the way in which the service is delivered via use of a rating system which results in warnings, and eventual termination of their relationship with Uber, if their rating does not improve. Finally Uber restricts the drivers' ability to communicate with passengers, restricting it to the minimum necessary to perform the particular trip.
In coming to its decision, the Supreme Court emphasised that the determination of "worker" status under the relevant legislation is a question of statutory interpretation, not contractual interpretation, and that the written agreement between the parties should not be the starting point. In this case the purpose of the legislation was to give protection to vulnerable individuals who are in a subordinate and dependent position in relation to the person or organisation who exercises control over their work.
Take note: The decision in Uber reinforces the message that the use of apps and technology to facilitate new ways of working cannot be used to avoid honouring workers' rights. The past few years have seen a growing number of cases where individuals have been found to be workers, not independent contractors, and this trend looks set to continue. It's also clear from the Court's decision that there is no legal presumption that a contractual document contains the whole of the parties' agreement. The Tribunal was entitled to look at the reality of the working arrangements to reach its conclusion that the drivers were workers and not independent contractors.
For further discussion of the Uber case please refer to our recent bulletin: 'Does the Uber decision diminish the importance of the employment contract?'
