Case law: Uber drivers for workers rights

Uber BV v. Aslam and others [2021] UKSC 5

Lord Leggatt gives the sole judgment in the Supreme Court and unanimously dismisses Uber’s appeal. The judgment emphasises five aspects of the findings made by the employment tribunal which justified its conclusion that the claimants were working for and under contracts with Uber. The claimants are workers for the purposes of employment rights.

The central question in the appeal was whether an employment tribunal was entitled to find the drivers whose work is arranged through Uber’s smartphone application (the “Uber app”), work for Uber under workers’ contracts.  If they did they would qualify for the national minimum wage, paid annual leave and other workers’rights.  Uber contended, however, that the drivers did not have these rights because they work for themselves as independent contractors, performing services under contracts made with passengers through Uber as their booking agent.

Taking the factors together, 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 [101]. The Supreme Court considers that comparisons made by Uber with digital platforms which act as booking agents for hotels and other accommodation [103 – 108] and with minicab drivers [109 – 117] do not advance its case. The drivers were rightly found to be “workers” [119].

National Minimum Wage

A secondary question was whether the employment tribunal was entitled to find that the drivers that brought the claims were working under such contracts whenever they were logged into the Uber app within the relevant territory and were ready and willing to accept trips.  Or were they, as Uber contended  only working when driving passengers to their destinations.

The relevance of the secondary question is for calculating the national minimum wage, rather than the central question of employment status.

Limb ‘b’ workers

As we now know, the Supreme Court affirmed the conclusion of the Employment Appeal Tribunal and the majority of the Court of Appeal, that the employment tribunal was entitled to decide both questions in the claimants’ favour – they were indeed ‘workers’.  Firstly it is important to point out that the judgment of the original tribunal was upheld by all courts, so they are to be congratulated on a robust judgment in the first place. 

Secondly, the claimants have been held to be ‘workers’, not employees and this only has an impact on the employment rights of the individuals concerned. 

Thirdly, this case does not change the status of the individual for tax purposes.  Although it seems contradictory, those workers will remain self-employed for tax purposes.  So, Uber will not be paying employment taxes as it may have been assumed.

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