In December 2018, the Court of Appeal (“CA”) upheld the EAT’s decision by a majority that drivers engaged by Uber are “workers” rather than self-employed, whenever they are signed into the relevant app and ready to work. Uber has been given permission to appeal the CA ruling to the Supreme Court.

This case primarily involved two of Uber’s legal entities, Uber London Ltd which holds the required private hire vehicle licence and Uber BV – the parent company, a Dutch corporation which holds the legal rights to Uber app.
Uber customers call the cabs via the smartphone app and then Uber locates the nearest driver and informs them of the request. Once the booking is accepted, the driver and passenger can contact one another through the app. At the end of the trip the fare is calculated by Uber, based on GPS data from the driver’s smartphone.

Uber’s written terms (with both passengers and drivers) stated that it did not provide transportation services but acted as agent for third-party providers. Therefore, the drivers were classed as “self-employed”. However, Uber drivers claimed basic rights, arguing they are “workers” instead.

The main issue was whether drivers were “workers” to which the CA ruled that the written contracts were artificial and they did not reflect what happened in real life – thus the “self-employment” was not genuine. This is a very high-profile case because of the implications it has upon the gig-economy in the UK.
The decision will determine the status of many gig-economy workers such as Addison Lee, Pimlico Plumbers and Deliveroo.
The decision will take precedence over years of historic employment status related cases and reflect the modern working world which has increasingly moved away from the “standard” full time work, and into flexible working patterns.
Depending on the Supreme Court’s Judgement, gig-economy workers could have legal rights in their employment which will give them basic rights such as national minimum wage and holiday pay. If the Supreme Court rule in their favour, Uber and many gig-economy firms are likely to see an influx of claims from all their staff.

Both the ET and EAT concluded the drivers were workers. They took into account various factors, including the significant control Uber exercised over the drivers.
For instance, it would deactivate a driver’s access to the app if customer ratings fell low, and drivers could be sanctioned for not accepting trips. Uber also told drivers they should log out of the app if they did not wish to carry passengers.
The EAT nonetheless expressed difficulty with the issue of what times the drivers could be treated as Uber’s “workers”. It was clear when they were driving customers around and had accepted a trip, but what about in-between? This issue is important because it is relevant to a determination of the drivers’ “working time” and their entitlement to the national minimum wage.

On appeal, the CA concluded that the drivers were workers at all times when they had the app switched on. The requirement to accept a high number of trips, the enforced logging-off of drivers who did not comply, and the way in which the ratings system operated as a performance/disciplinary procedure were all significant in showing Uber’s control of the drivers.
It will be interesting to see whether the Supreme Court takes a similar view.

A year and a half after the Taylor Review (a review carried out by Matthew Taylor on modern employment practices with recommendations for reform) the Government have finally responded to recommendations on employment status with “The Good Work Plan” which promises to “improve the clarity of the employment status tests”.

There is no further information about it yet, so we will wait to see what frameworks are constructed to give both employers and workers a solution.
For further information, please contact Koichiro Nakada – Head of Japan Business Group (koichiro.nakada@lewissilkin.com) and Yoko Nakada - Senior Associate, Deputy Head of Japan Business Group (yoko.nakada@lewissilkin.com).
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