The Supreme Court has confirmed that Yaseen Aslam and a small group of other drivers had the status of workers, not self-employed contractors, when working for Uber. In doing so it has upheld the decision of the employment tribunal in 2016, and agreed with the rulings of the Employment Appeal Tribunal (in 2017) and the majority of the Court of Appeal (in 2018).
This decision paves the way for the Mr Alsam and his colleagues to recover paid holiday under the Working Time Regulations as well as the National Minimum Wage for the periods during which they were regarded as working for Uber. The Supreme Court has confirmed that this includes not only the time they were actually driving, but also waiting periods when they were logged into the Uber app and ready to accept passengers.
Important though this decision is for all Uber drivers, it has wider implications for the whole gig economy. That is because the reasoning is not limited to the extremely complex legal agreements underpinning the use of Uber app, but is based more broadly on the purpose of the UK’s working time and National Minimum Wage legislation. In the Supreme Court’s view, in this context the legal documentation cannot form the starting point of an employment tribunal’s enquiry, as Uber claimed. As Lord Leggatt puts it:
“To do so would reinstate the mischief which the legislation was enacted to prevent. It is the very fact that an employer is often in a position to dictate such contract terms and that the individual performing the work has little or no ability to influence those terms that gives rise to the need for statutory protection in the first place. The efficacy of such protection would be seriously undermined if the putative employer could by the way in which the relationship is characterised in the written contract determine, even prima facie, whether or not the other party is to be classified as a worker.”
That approach means that while the legal documentation cannot be ignored, it is only part of the picture. In this case, what persuaded the Supreme Court that the employment tribunal had assessed the drivers’ status correctly was the high degree of control Uber exercised over the way the services were delivered. This included setting the price, dictating the route, defining the contractual terms between the driver and the passenger, and limiting drivers’ freedom to decline rides. This led it to reach this conclusion:
“Taking these factors together, it can be seen that the transportation service performed by drivers and offered to passengers through the Uber app is very tightly defined and controlled by Uber. Furthermore, it is designed and organised in such a way as to provide a standardised service to passengers in which drivers are perceived as substantially interchangeable and from which Uber, rather than individual drivers, obtains the benefit of customer loyalty and goodwill. From the drivers’ point of view, the same factors - in particular, the inability to offer a distinctive service or to set their own prices and Uber’s control over all aspects of their interaction with passengers - mean that they have little or no ability to improve their economic position through professional or entrepreneurial skill. In practice the only way in which they can increase their earnings is by working longer hours while constantly meeting Uber’s measures of performance.”
Since posting the above we have recorded a podcast in which we explore the implications of this important decision in more detail.
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