A Dutch Company - Uber BV - owns the technology
behind a smartphone app which linkes those wishing to book a private hire vehicle (PHV) with a driver. A number of drivers, including Mr Aslam and Mr Farrar, brought a claim in the employment tribunal in order to establish their employment status.Legal proceedings:
The claim was heard in 2016 with the tribunal finding that Mr Aslam and Mr Farrar worked under workers' contracts for Uber London Ltd - Tribunal Judgment October 2016
In November 2017, the Employment Appeal Tribunal (HHJ Jennifer Eady QC) handed down a reserved judgment dismissing Uber's appeal - see the judgment.
The Court of Appeal (Civil Division) dismissed Uber's appeals. See the Court of Appeal's judgment of 19 December 2018 - [2018] EWCA Civ 2748 (Sir Terence Etherton MR and Bean LJ with Underhill LJ dissenting). (Judge Eady's judgment is discussed by the Court of Appeal at paras 33 to 37).
In July 2020 the Supreme Court heard a further appeal by Uber and, on 19 February 2021, handed down a unanimous judgment dismissing the appeal - [2021] UKSC 5. Initially, the Supreme Court's panel had seven justices but the illness of Lord Kitchin required that the panel be reconstituted as a panel of six justices.
The Supreme Court's judgment:
Essentially, Uber argued that the drivers were independent contractors. The Supreme Court disagreed.
The Court held that the transportation service performed by drivers and offered to passengers through the Uber app is very tightly defined and controlled by Uber. Drivers are in a position of subordination and dependency in relation to Uber such that they have little or no ability to improve their economic position through professional or entrepreneurial skill. In practice the only way in which they can increase their earnings is by working longer hours while constantly meeting Uber’s measures of performance. The Supreme Court considered that comparisons made by Uber with digital platforms which act as booking agents for hotels and other accommodation and with minicab drivers did not advance its case. The drivers were rightly found to be “workers”.
The Supreme Court also held that the employment tribunal was entitled to find that time spent by the claimants working for Uber was not limited (as Uber argued) to periods when they were actually driving passengers to their destinations, but included any period when the driver was logged into the Uber app within the territory in which the driver was licensed to operate and was ready and willing to accept trips.
The result is that, as workers, the claimants are entitled to the rights and protections in the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998.
Next?
The drivers were successful in this protracted litigation. The government ought to bring forward the employment legislation included in the Queen's Speech 2019.
The position of workers for companies such as Uber is well-described in an article published by the TUC - Asif's story -
"Uber has long claimed that drivers like me are self-employed and should be treated like business owners – responsible for their own income, outgoings and everything else about being a driver. Now we know for a fact that this is not the case.
In reality, Uber control just about everything I do when working for them. They decide where I go, how much I can charge and which jobs I get. And yet this company does not take any responsibility for my employment.
Up till now, Uber drivers have not been guaranteed a minimum wage – and not every driver always makes the legal minimum. We’re also not entitled to holiday pay and as a result, any time off means a loss of earnings, which can mean a lot when you have bills to pay.
This isn’t just about the drivers, it’s about all the workers in this country that these companies wish to exploit using new smartphones and apps as an excuse."
Media:
The Guardian 20 February and The Guardian 21 February.
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