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The Case Continues: Are Uber Drivers “Workers”? The Court of Appeal Says Yes!

In the recent case of Uber BV v Aslam & ors [2018], the Court of Appeal (“CA”) has confirmed the decision of the Employment Appeal Tribunal (“EAT”) to hold that Uber drivers are workers and are not self-employed contractors for the purposes of the Employment Rights Act 1996 (“ERA 1996”).  

The drivers argued that Uber contracts with the passengers to provide driving services which the drivers then perform for it. On the other hand, Uber argued that it only acts as an intermediary, providing booking and payment services, and the drivers drive the passengers as independent contractors.

Despite the written contractual terms between the drivers and Uber reflecting Uber’s argument, the CA held that the terms do not reflect the practical reality of the relationship. This means that the written terms may be disregarded in line with the established principle in Autoclenz Ltd v Belcher [2011]. The CA considered the reality to be that Uber runs a transportation business and the drivers provide the skilled labour through which that business delivers its services and earns its profits. This means that the drivers are “workers”.

The majority of the CA also held that drivers are under a positive obligation to be available for work whilst the app is on and that that amounts to “work” for the purposes of the Working Time Regulations.

Establishing worker status for the drivers is a prerequisite for the following rights and will therefore have a profound impact on the gig economy:

  • Protection from unlawful deductions from wages (Section 13 of the ERA 1996).
  • Entitlement to receive the National Minimum Wage. (Section 1 of the National Minimum Wage Act 1998 (NMWA 1998).)
  • Entitlement to paid annual leave. (Regulation 13 of the Working Time Regulations 1998 (WTR 1998).)

However, despite this decision, the CA has given permission for Uber to appeal to the Supreme Court and so the case continues!

This bulletin is for general guidance purposes only and should not be used for any other purpose.

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