You will be aware from our series of articles on worker status that the employment status of Uber drivers continues to be litigated and the Court of Appeal has recently issued its judgment in the case.
To remind you of the facts, a number of Uber drivers had brought a claim against Uber in the employment tribunal (ET) for Uber’s failure to pay the minimum wage and failure to provide paid leave. In order to be entitled to these rights, they had to establish that they were ‘workers’ and not self-employed as contended by Uber.
Although the contractual documentation signed by the drivers clearly stated that they were self-employed, the ET looked past this to the actual relationship between Uber and its drivers and found that Uber drivers were workers when they were in the territory they had been authorised to drive in, were signed in to the Uber app and were ready and willing to accept bookings. The ET also held that the time during which the drivers fulfilled the above criteria counted as working time for the purposes of the Working Time Regulations and corresponded to their hours worked for the purposes of the National Minimum Wage calculations.
Uber appealed to the employment appeal tribunal (EAT) which dismissed the appeal upholding the ET’s decision. Uber then appealed to the Court of Appeal.
The Court of Appeal (CA) agreed that the drivers were workers and that their working hours were as set out by the ET. It noted that the written documentation in cases such as these does not always correspond with the true relationship, particularly where there are standard terms which are non-negotiable and the parties do not have equal bargaining power. Therefore the genuine agreement between the parties should be determined by examining all the circumstances, not solely by considering any written documentation.
Uber had argued that it acted as an intermediary to the drivers, providing booking and payment services, and that the drivers were independent contractors. The CA found that this was not correct and that in reality it is Uber that runs the business, a transportation business, and the drivers provide the labour to enable the business to deliver its services.
The fact that Uber is the Private Hire Vehicle operator for the purposes of the relevant regulations was considered to be an important factor in determining that the drivers were workers. The CA considered that Uber’s claim on the one hand to be the PHV operator and to comply with the regulatory regime in that respect and yet on the other hand to claim that it merely licensed its software to the drivers as small business owners “contributed to the air of contrivance and artificiality which pervaded Uber’s case”.
Unlike with a traditional minicab service, in this situation there can be no contracts between the driver and passenger as essential elements are missing, particularly that the driver does not know at the point of acceptance the passenger’s destination. Additionally, the passenger has no contract which would oblige the driver to pick him or her up. Although an invoice was produced which purported to be between the driver and the passenger following each trip, only the passenger’s first name was used, no contact details were included for the passenger and the invoice was never sent to the passenger therefore this could not support Uber’s claim that the contract was between the driver and the passenger.
The Court of Appeal has given Uber permission to appeal to the Supreme Court so it is likely that Uber will do so. It remains to be seen whether the Supreme Court will uphold the decision of the Court of Appeal, although it is hard for one to find fault in the CA’s decision. No doubt many businesses will eagerly await any such outcome from the Supreme Court.
For further advice on Employment Services, please call us on 01483 543210 or alternatively email David Ludlow email@example.com