In Uber BV and others v Aslam and others UKEAT/0056/17, the Employment Appeal Tribunal (EAT) upheld the 2016 employment tribunal decision (as reported by us here) that Uber’s drivers are workers. As such, they qualify for additional rights including minimum wage, sick pay and holiday pay.
Uber argued that its drivers were not workers as it is not a provider of transport services but merely a technology platform connecting drivers with passengers. It claimed that the employment tribunal should not have disregarded the written contracts between the parties which made it clear that Uber was providing services to the drivers as their agent, not their employer, and should have given weight to other factors which pointed to the drivers being self-employed.
The EAT rejected Uber’s arguments and found that the employment tribunal had been entitled to look beyond the written contracts to the reality of the relationship, which was not reflected in the contracts. The degree of control held by Uber over its drivers was particularly significant: Uber drivers were not required to make any commitment to work but, once logged into the app, had to be able and willing to accept at least 80 percent of assignments. Failure to do so would subject them to penalties. This was indicative of worker status, with the employer having control over the drivers. The fact that there were periods when they were not workers (i.e., when the app was switched off) was not fatal to this finding.
Although this is a highly fact-sensitive area, this ruling is indicative of the general direction of travel in the “gig economy” cases. Hoping to bypass the Court of Appeal, Uber has applied to the Supreme Court to appeal this decision. It is yet to be seen whether the Supreme Court will accept its application.