In a recent judgment attracting substantial press attention, an Employment Tribunal (ET) has held that drivers who accept work via the Uber app on their smartphone have worker status. The decision means that Uber drivers will benefit from paid annual leave, the minimum wage and whistle-blower protection.
The case against Uber has been brought by two ‘test claimants’ alleging unlawful deductions from wages and a failure to provide paid leave. These claims rely on them establishing worker status and this issue was addressed at a preliminary hearing. During the hearing Uber insisted that it is a technology platform enabling self-employed drivers to enter into contracts with passengers and denied that it is a provider of transport services.
The ET heard extensive evidence about Uber’s business model. While it was satisfied that there was no overarching contract between Uber and the drivers, it held that when drivers had the app switched on, were within the territory in which they were authorised to work and were able and willing to accept work, they qualified as workers.
The ET rejected as ‘faintly ridiculous’ the notion that Uber in London is a ‘mosaic of 30,000 small businesses linked by a common ‘platform’’. Noting that Uber retains key passenger information, fixes the route and fare for each trip and ‘logs off’ drivers who cancel work, the ET found that the degree of control exercised by Uber was inconsistent with the drivers being in business on their own account.
The ET also poured scorn on the ‘remarkable lengths’ Uber had gone to in an effort to present its drivers as self-employed and dismissed the ‘grimly loyal evidence’ of one of its witnesses with the Shakespearean quip: ‘the lady doth protest too much.’
Uber has confirmed it will appeal the decision. Other businesses operating with similar models in the “gig economy”, i.e. those that utilise skills or services provided by individuals on a freelance or ad hoc basis, will be watching on with interest. Although the decision in Uber’s case is heavily fact-dependent, the growth of the gig economy could be subdued if the businesses involved are forced to engage with costly and complex issues such as sick pay and holiday.
All employers also need to be careful that individuals they have classified as self-employed are not, in reality, employees or workers who could claim employment protection.