The Employment Appeal Tribunal has now upheld last year’s employment tribunal ruling that Uber drivers were workers, not self-employed contractors. However, a further appeal to the Court of Appeal seems likely.
On appeal to the EAT, the main argument was that the tribunal had been wrong to reject Uber’s contention that it was merely acting as agent for the drivers by putting them in touch with potential customers. However the EAT said that the tribunal had been entitled to conclude, after looking at all the relevant circumstances, that the reality of the situation was that Uber had engaged the drivers as workers.
This is a decision based on particular (and very convoluted) facts and falls short of suggesting that all individuals engaged in the gig economy should be classified as workers. Two factors stand out as particularly significant in this case. Firstly, the tribunal found that Uber’s drivers were in effect subject to an obligation to accept 80% of jobs offered, which made it difficult to argue that they were in reality free to accept work from another source. Secondly, the absence of any direct written agreement between the drivers and Uber London Limited (which holds the operating licence in London) made it more difficult for Uber to argue that the correct characterisation of the relationship was that of principal and agent.
Given the financial impact of the EAT’s ruling on Uber, the litigation seems destined to go to the Court of Appeal, if not to the Supreme Court. Although the first instance decision is fact sensitive, this is by no means the only case where individuals engaged in the gig economy have secured worker status. There has been a run of other employment tribunal decisions over the past year which have also gone in favour of workers, including couriers engaged by Citysprint, and most recently, drivers at Addison Lee.
We are likely to have to wait at least until next year before we have any firm idea of the final outcome of the Uber employment status litigation. In the meantime Uber’s attention will no doubt be focused on winning its separate appeal against the withdrawal of its operating licence in London.