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Worker Employment Status - Uber

13 November 2017

Readers will have seen the widespread reporting of the Employment Appeal Tribunal’s decision in the case of Uber BV & Others -v- Aslam & Others. The ruling has been widely reported as a “landmark” judgment on employment status particularly in relation to those workers and genuinely self-employed contractors working in the gig economy.

As we have previously reported, an employment tribunal decided that Uber’s drivers are “workers” within the meaning of Section 230(3)(b) of the Employment Rights Act 1996 and as defined by the National Minimum Wage Act 1998 and the Working Time Regulations 1998.

The Employment Appeal Tribunal has upheld that decision and dismissed Uber’s appeal. The effect of the decision is that any of the 40,000 or so drivers registered as Uber drivers who have their Uber App switched on, as a matter of law operate as “worker” contractors and are therefore entitled to such statutory rights as holiday pay, rest breaks and the minimum wage. The claimants were supported by the GMB Union who have hailed the ruling as a “landmark decision”. Early reports indicate that Uber intends to appeal. Whether or not the case is now considered by the Court of Appeal this is not the end of the matter as it is highly likely that other cases involving businesses that use a technology platform to introduce workers of self-employed independent contractors to customers of one sort or another – so called “gig economy” service providers – are likely to face similar challenges.

On a practical level any business in any field whether it be the provision of taxi or other transport services or, for example, health carers that wish to characterise its business as a mere technology platform will have to ensure that not only do the written contracts between, on the one hand, it and the service providers or workers (using those terms in a non-technical sense) and, on the other hand, it and the customers and clients, reflect what the parties wish to achieve but also that the practical reality of the day to day operations is consistent with the documentation. In this case the employment tribunal found and the Employment Appeal Tribunal accepted that there was sufficient evidence for it to find that the contractual documentation did not accord with the reality of the working arrangements. The individual taxi drivers did not operate as separate businesses but were integrated into Uber’s business.

Will de Fazio-Saunders will be discussing this judgment in more detail in the third part of his series of articles on Employment Status (part 1 & part 2) in our next ELU.

By David Ludlow

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