The claimants, current and former drivers of the ride-hailing app, Uber, brought various claims in the Employment Tribunal which required them to be “workers” for the purposes of the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998. The Tribunal ruled James Farrar and Yaseen Aslam were workers for the purposes of the legislation, meaning they were entitled to holiday pay, sick pay and the national living wage, among other protections.

Uber appealed the decision arguing the Tribunal had erred in law, made a number of inconsistent and perverse findings of fact and failed to take into account relevant matters relied on by Uber.

Rejecting these arguments, the EAT upheld the Tribunal’s decision, confirming that when the Uber app was switched on, when drivers were within the territory in which they were authorised to work, and were able and willing to accept assignments, they were deemed to be workers.

The EAT commented on certain aspects of the relationship, particularly the obligation on drivers to accept at least 80% of trip requests, the fee imposed for cancelling a trip once accepted, the penalties imposed for failing to use the Uber-GPS route and the policy regarding financial loss. Uber alleged any actions indicative of worker status were merely required for the regulatory framework and that it was simply acting as an agent between the drivers and passengers.

Applying Autoclenz v Belcher, the EAT held “the reality of the situation was that drivers were incorporated into the Uber business of providing transportation services, subject to arrangements and controls that pointed away from their working in business on their own account in a direct contractual relationship with the passenger each time they accepted a trip.”

Assessing the true nature of the relationship, the EAT rejected the label of agency used in the written contractual documentation. The Tribunal had due regard to agency law, yet considering the factual arrangement between the parties, it rejected the argument that Uber was simply acting as the drivers’ agent.

Practical Lessons

The case highlights the need for rigorous contracts to be put in place and reaffirms the willingness of the tribunals to look behind the written contractual documentation to the reality of the situation. The arrangements in place “did not provide the complete picture,” emphasised an inequality of bargaining power and did not reflect the reality. In all likelihood Uber will seek to appeal the decision, and may wish to advance the appeal to the Supreme Court to be heard at a simultaneous time as the Pimlico Plumbers case.
https://assets.publishing.service.gov.uk/media/5a046b06e5274a0ee5a1f171/Uber_B.V._and_Others_v_Mr_Y_Aslam_and_Others_UKEAT_0056_17_DA.pdf