For the background to the appeal, read our article on the Employment Tribunal judgment from October 2016.

The EAT appeal focused on the true relationship between the drivers and Uber London Limited. Uber had sought to argue that its relationship with the drivers was one of agency, but the EAT decided that the Employment Tribunal had been entitled to reject this characterisation as being incorrect. The EAT felt that it could not be said that Uber drivers were principals in an agency relationship because the arrangements were inconsistent with the drivers being in business on their own account. The fact that the drivers were controlled by Uber London was an indication that the drivers were not true business owners.

The EAT concluded that the Tribunal had not erred in either its approach or its conclusions. Uber had therefore failed to meet the high threshold required to show that the Tribunal’s decision had been perverse.

A second limb of the appeal was the question of when drivers could be considered to be at work. The EAT agreed with the Tribunal’s finding that the drivers’ obligation starts when:

However, the EAT noted that the question of a driver’s status between trips was a tricky one to answer, particularly if the driver worked for more than one operator at the same time. The amount of time a particular driver actually spent driving, and therefore working, would hinge on “fact and degree”.

It is almost a foregone conclusion that the decision will be appealed to a higher court, in keeping with the path trodden by other gig economy cases, such as that concerning Pimlico Plumbers.

CASE Uber BV and ors v Aslam, Farrar and ors, Employment Appeal Tribunal, 10 November 2017

The Tribunal found that Uber drivers were workers whenever three elements of their working arrangement were satisfied:

The Tribunal was critical of the lengths it felt Uber had gone to in order to disguise the true nature of its working arrangements with drivers, “resorting in its documentation to fictions, twisted language and even brand new terminology”. The Tribunal saw through this smokescreen to find the true relationship between Uber and its drivers was that of worker and employer.

Uber imposes numerous conditions on drivers…instructs drivers as to how to do their work and, in numerous ways, controls them in the performance of their duties. Employment Tribunal

The Tribunal provided several examples that ran counter to Uber’s view that the drivers acted as self-employed businessmen and which supported the drivers’ claims that they were workers operating under its control.  These included:

Once the Tribunal had decided that the drivers were workers, there was the second question of when drivers could be considered to be at work.  This was relevant to the questions of whether drivers were being paid according to NMW legislation and for calculating the holiday pay drivers would be due.

The Tribunal found that whenever the three employment status conditions were satisfied, the Uber driver could be considered to be at work for holiday pay purposes.   In considering the NMW, the Tribunal decided that Uber drivers did not carry out “time work”, but instead carried out “unmeasured work” so that the “relevant hours” when calculating the NMW would be any hours worked by the driver.

The drivers’ claims were brought against Uber B.V., whose headquarters are in Amsterdam, and its local subsidiaries Uber London Ltd and Uber Britannia. Despite Uber B.V. purporting to be the entity that had entered into contracts with the drivers, the Tribunal found that in reality the drivers were employed by Uber London as it was the main point of contact between Uber and its drivers.

This preliminary ruling is likely to be the first stage in what will inevitably turn into a long-running saga. The Tribunal’s judgment carries onerous financial implications that spell disaster for Uber’s business model and the wider gig economy. It is therefore expected that Uber will appeal the Tribunal’s judgment to a higher court.

CASE Aslam and ors v Uber B.V. and ors, 28 October 2016

On 10 November 2017, the [...]]]> http://lawandlabour.com/uber-drivers-are-workers/feed/ 0 http://lawandlabour.com/uber-who-is-the-boss/ http://lawandlabour.com/uber-who-is-the-boss/#comments Fri, 18 Sep 2015 11:23:04 +0000 http://lawandlabour.com/?p=2265 Uber is the app created by Uber Technologies that allows you to hail a taxi from your smartphone. Since the company’s founding in San Francisco five years ago, it has grown into a worldwide phenomenon that operates in 58 countries.

Uber is seen to embody the “gig economy” – the trading of commissions for work online. The company’s business model relies on it acting as a middleman between drivers and passengers. It is effectively a means of organising an army of freelance workers.

A protest by black cab drivers in London

From the start Uber has had to struggle with a number of challenges to its legitimacy. Most countries have regulation that covers the operation of taxi hiring services and some states deem that Uber does not meet these stringent rules. Taxi drivers in some cities have protested against what they view as Uber’s erosion of an established means of operation. There have also been complaints about the practice of “surge pricing” by which Uber raises taxi fares significantly during times of high demand.

At the heart of Uber is its fleet of drivers, which the company calls “partners”. In theory, anyone with their own car can work as a Uber driver.

The key question facing many countries in which Uber operates is whether the drivers who work under the Uber umbrella are self-employed contractors or whether in reality they are employees of Uber. The distinction is important given that employees have extensive rights protected by law which are not available to the self-employed. Courts will have to consider the employment relationship as defined by law in the light of the new type of working arrangement made possible by technology which Uber has adopted.

Uber views its drivers as independent contractors, arguing that each driver works according to terms that it sets. However, a number of recent cases in the USA have questioned whether Uber’s control over work performed by its drivers means it is an employer. In June, the California Labor Commission decided that an Uber driver could be classified as an employee rather than an independent contractor. The driver was awarded US$4,000 for driving expenses. Similar lawsuits are pending in San Francisco.

To decide the employment status of Uber drivers, the court will need to determine the reality of the employment relationship between Uber and its drivers. This may differ from Uber’s view of the relationship and will ultimately depend on the court’s assessment of three elements:

Even if the court does not consider Uber drivers to be employees, it is still open to the court to find that they are workers. Self-employed contractors may be workers if they provide [...]]]> http://lawandlabour.com/uber-who-is-the-boss/feed/ 0