The Court of Appeal handed down its decision on 19 December 2018 in the ongoing employment status case brought against Uber by a group of London drivers. Contributor Karen Plumbley-Jones, Managing Associate (Practice Development Lawyer) – Womble Bond Dickinson.
In Uber BV and others v Aslam and others, 21 drivers brought claims against Uber for the national minimum wage and paid holidays. In order to bring their claims, the drivers had to establish that they were workers. Uber argued that they were self-employed and that it just provided the technology that enabled the drivers to find and agree work with passengers.
The employment tribunal (ET) and the Employment Appeal Tribunal (EAT) found that the drivers were workers. Now the Court of Appeal has agreed, although it is interesting to note that Lord Justice Underhill (who was previously the President of the EAT), dissented and would have found that the drivers were independent contractors on the basis that they did not provide services to Uber under a contract with it. The written contracts stated that Uber acted as an intermediary and merely provided booking and payment services, while the drivers were independent contractors and had a direct contractual relationship with the passenger. The Court found that this did not reflect the reality of the situation so could be disregarded in accordance with the principle set out by the Supreme Court in Autoclenz Ltd v Belcher. It agreed with the drivers that Uber contracted with the passengers to provide driving services, which the drivers carried out for it.
The ET had been asked to decide in principle what counted as work and/or working time for the purposes of the paid leave and national minimum wage claims. The Court of Appeal found that the drivers should be treated as working during all the time they were within their agreed territory, had the Uber app turned on and were ready and willing to accept jobs. Again Underhill LJ dissented and found that the drivers should only be treated as working from the time they accepted a particular trip.
The Court gave Uber permission to appeal to the Supreme Court and Uber has indicated that it intends to do so, which means that this may not be the last word on the matter. If the Supreme Court upholds this decision, Uber’s costs will increase and this is likely to be passed on to passengers. Lastly, while employment status cases turn on their own facts, this decision will be relevant to workers in the gig economy who provide services under similar contracts.
The Government’s Good Work Plan – published earlier this week – set out the Government’s intention to improve protection for workers on atypical contracts, such as in the gig economy. Its proposals include: clarifying the employment status tests, aligning the employment and tax tests; and a right to request a more fixed working pattern after 26 weeks on a non-fixed pattern. These proposals are at an early stage and it is likely to be some time before they are implemented. In the meantime, there are a number of employment status cases in the courts at the moment (mainly concerning couriers, drivers and foster carers) and employers will no doubt be keeping a close eye on them.