Uber Drivers: Workers’ Rights: Uber loses appeal to the Employment Appeal Tribunal

The Appeal

This was an appeal by Uber against a finding by the Employment Tribunal that certain Uber drivers were “workers” for the purposes of the Employment Rights Act 1996 , the Working Time Regulations 1998, and the National Minimum Wage Act 1998.

The Employment Tribunal had found that any Uber driver who had the Uber app switched on, and was able and willing to accept assignments was

1. working for Uber under a “worker” contract; and was
2. thereafter engaged on “working time” for the purposes of the National Minimum Wage Regulations .

Uber argued that there were written agreements between Uber, drivers and passengers, which were inconsistent with the existence of any “worker” relationship between drivers and themselves. It was claimed that those agreements showed (1) that Uber drivers provided transportation services to riders, and (2) that Uber itself merely provided its services to the drivers as their agent.

Decision by Employment Appeal Tribunal

The Employment Appeal Tribunal dismissed the appeal. Material findings were –

1. An assessment as to whether Uber drivers are “workers” for these purposes, and entitled to workers’ rights, is ‘fact-and context-specific’.
2. The ET had been entitled to reject Uber’s (self-serving) characterisation of the relationship between Uber drivers and itself in the written contractual documentation.
3. The true agreement between the parties was not one in which Uber acted as the drivers’ agent.
4. The reality of the situation was that the drivers were incorporated into the Uber business of providing transportation services.
5. The overall arrangements and various controls that define the relationship between Uber and its drivers pointed away from drivers working in business on their own account
6. Various obligations upon Uber drivers were relevant:
   1. that they should be in the relevant territory (here, London), with the app switched on; and
   2. “able and willing to accept assignments” accept trips offered by Uber; and
   3. that they should not cancel trips once accepted (there being potential penalties for doing so).

These obligations militated against there being a direct contractual relationship with the passenger each time a driver accepted a trip. It was indicative that Uber themselves described the obligations as arising when a driver was “on duty”.

7. To the extent that drivers, in between accepting trips for Uber, might hold themselves out as available to other PHV operators, the above analysis might not apply; hence the ET’s observation that it would be a matter of evidence in each case whether and for how long a driver remained ready and willing to accept trips for Uber.

The future: to the Court of Appeal & Supreme Court?

Giving minimum rights to workers, and the payment of VAT and Corporation Tax are anathema to the Gig Economy. Uber have indicated that they will appeal the decision to the Court of Appeal.

Full text of the decision