Uber rights for drivers?
Ian Machray gives a legal update on whether Uber drivers are workers or self-employed.
As is widely known, Uber has created an online platform whereby customers use a smartphone app to order a taxi and pay the fare.
Uber treats the drivers as “self-employed”, but this has been challenged by a number of Uber drivers in a high-profile legal case. The drivers argue that they are “workers” and are consequently entitled to a number of legal rights including paid annual leave, minimum wage, and the right not to be discriminated against.
In considering the employment status of an individual, courts and tribunals are entitled to reject the label attributed by the parties and can look behind the documentation to determine the true nature of the relationship. A number of factors can be taken into account including the degree of control and the obligations of the parties.
In 2016, the Employment Tribunal (ET) held that Uber drivers are workers when they have the app switched on, they are within the territory in which they are authorised to work and are able and willing to accept trips. The Employment Appeal Tribunal (EAT) agreed.
Uber appealed to the Court of Appeal and judgment was handed down in December 2018.
The majority of the judges held that the ET had not only been entitled, but correct, to find that Uber drivers are workers. They found that the high level of acceptances required of drivers, and the penalty of being logged off if three consecutive requests were not accepted within the ten second time frame, justified the ET’s conclusion that the drivers were workers when waiting for a booking because they are available to Uber and at its disposal.
However, this decision was not unanimous and the dissenting judge, a former president of the EAT, found that Uber drivers provide their services to passengers as principals, and that Uber acts as an intermediary by providing booking and payment services.
Uber has been granted permission to appeal to the Supreme Court.
This judgment is the latest in a series of cases demonstrating how difficult it can be to apply the employment status tests to individuals in the “gig economy” who now make up over 4% of the UK workforce. In December 2018, the government committed to bring forward legislation to improve clarity on employment status tests, particularly in relation to service provision platforms, to ensure that the law reflects modern working practices.