Under or Uber the Minimum Wage?
Following the 2021 Supreme Court ruling that Uber drivers are workers, a new claim has been brought challenging Uber’s calculation of the national minimum wage.
In 2021, the Supreme Court concluded that Uber drivers are workers, rather than self-employed contractors as Uber had long argued. We covered this decision in more depth at the time – you can read more here.
One of the original claimants in that case, Mr James Farrar, General Secretary of the App Drivers & Couriers Union (ADCU), has now brought a new claim to the Employment Tribunal, to establish the correct calculation of the national minimum wage (NMW) for Uber’s drivers. One of the key aspects of the Supreme Court’s decision in 2021 was their conclusion that “working time” for Uber drivers includes any time that they are spent logged in on the Uber app, within the territory that they are licensed to operate, when they are ready and willing to accept trips.
On this basis, Mr Farrar is arguing that as many as 100,000 Uber drivers are still not being paid the NMW. He alleges that Uber only pays drivers from the time they pick up a passenger until the passenger exits the vehicle, rather than for the whole time that drivers are logged in to the Uber app, in the territory they are licensed to operate in, while ready and willing to accept trips.
Uber has rebuffed this, maintaining that all its UK drivers earn at least the NMW. Uber has also confirmed that, in circumstances where drivers’ earnings fall under the NMW because of vehicle expenses and other charges, like congestion charges in London, then their wages are topped up to NMW levels.
Mr Farrar has claimed that “Uber has unilaterally decided not to pay drivers for waiting time”, despite the Supreme Court’s confirmation that time spent logged in, ready and willing to accept trips, which would logically include waiting time, is “working time”.
But Uber’s General Manager for the UK, Mr Andrew Brem, argues that this interpretation of working time, for NMW purposes, doesn’t account for the realities of working via a ridesharing app. “What if they’re logged into three other apps at the same time? Would you get three National Living Wages from three different people? I don’t think that makes any sense to me,” Mr Brem commented. “When I’m not on a trip, I could be doing something else. I could be driving on the Bolt platform. I could be writing an article for the Evening Standard and getting paid a couple of hundred quid for it. It doesn’t make sense to me that I would be getting three sets of payments during that period when I’m not actually driving on a trip for Uber. I don’t even have to be in the car to put the app on and go online. I could be having a coffee with my mates and have the app on online – and I could be sitting there rejecting every trip.”
While Mr Brem’s comments perhaps demonstrate some additional complexities for determining NMW in this context, his hypothetical of the coffee-drinking, trip-rejecting Uber driver may not take into account the Supreme Court’s confirmation that a driver is only working when they are ready and willing to accept trips. This would seem to exclude time spent driving on other ridesharing apps (such as Bolt) or engaging in other work. However, the position becomes a little less clear where a driver is waiting for rides to pop up on both Uber and Bolt, for example – should a driver be due NMW from both Uber and Bolt for this period? How would an employer logistically determine when a driver is ready and willing to work?
There are certainly a number of tricky factors to consider, and this will be an interesting case to watch for any employers who engage staff on a flexible basis or who operate in the “gig” economy. We will keep you updated with any significant developments as this case progresses. If you would like any advice on calculating national minimum wage for your workers, please get in touch at [email protected]