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Uber drivers: workers and not self-employed

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By Catherine Walsh

The question of employment status continues to develop as new cases progress through the legal system. The latest to return to court, is Uber BV and others v Aslam and others.

The Supreme Court unanimously upheld previous decisions that Uber’s drivers are to be classified as workers. This is another important judgment evolving the principles used to classify the employment status of gig economy workers.

The case was brought by 25 Uber drivers, who maintained that they were not self-employed, as Uber claimed, but were workers. The Supreme Court has agreed, finding that the drivers were in a “position of subordination and dependency to Uber.” Classification as a worker, rather than self-employed, has important implications. It confers statutory rights, including rights to paid annual leave and to the National Minimum Wage for hours worked. While worker status does not provide all of the statutory protections given to employees, it is an intermediate status conferring more rights than self-employment.

The Case

Uber claimed that the drivers were engaged by their passengers, with Uber merely an intermediary agency bringing them together. When rejecting this, the Supreme Court considered a number of factors, namely that:

  1. The fares were set by Uber - the drivers had no involvement in the charges, meaning that Uber controlled drivers’ earnings;

  2. Uber set the contractual terms between itself and the drivers - the drivers did not have a say, it was a “take it or leave it” situation;

  3. When drivers used the app, they were bound to accept requests - Uber could penalise drivers whose rate of acceptance fell too low;

  4. Uber monitored the drivers through the passengers star rating system, which could lead to warning and ultimately termination;

  5. Uber vetted the type of car drivers used; and

  6. The communication between a driver and passenger was limited by Uber.

Based on the facts of the case, involving a sufficiently high degree of control, it found that the drivers were subordinate to Uber.

What will happen next?

The Employment Tribunal will next decide on any awards for the claims brought by the 25 drivers. While other drivers may bring claims against Uber too, the judgment does not necessarily mean that all Uber drivers are workers.

The Supreme Court confirmed existing principles allowing courts to look beyond a written agreement to consider the working arrangements in practice when assessing status. It held that the starting point is to interpret the legislation and not the contract. As the purpose of the legislation is to confer rights on those in subordinate positions, starting with the contract would potentially defeat that purpose if the parties have unequal bargaining power.

The gig economy continues to increase – the case law does too, establishing important principles of law, both for those seeking to establish worker status to assert rights and those engaging people to work in their business who must act lawfully and meet the associated costs.

For further information about this area, please contact Anthony Wilcox, Partner in Employment Law & HR Advice at: anthony.wilcox@twmsolicitors.com.

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