Smartphone App Contractors did so as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual leave and other workers’ rights; or whether, as Uber contended, the drivers did not have these rights because they worked for themselves as independent contractors, performing services under contracts made with passengers through Uber as their booking agent.
Held: Uber’s appeal failed. The employment tribunal was entitled to find and could only conclude that the claimant drivers were ‘workers’ who worked for Uber London under ‘worker’s contracts’ within the meaning of the statutory definition.
‘it would be inconsistent with the purpose of this legislation to treat the terms of a written contract as the starting point in determining whether an individual falls within the definition of a ‘worker’. To do so would reinstate the mischief which the legislation was enacted to prevent. It is the very fact that an employer is often in a position to dictate such contract terms and that the individual performing the work has little or no ability to influence those terms that gives rise to the need for statutory protection in the first place. The efficacy of such protection would be seriously undermined if the putative employer could by the way in which the relationship is characterised in the written contract determine, even prima facie, whether or not the other party is to be classified as a worker. Laws such as the National Minimum Wage Act were manifestly enacted to protect those whom Parliament considers to be in need of protection and not just those who are designated by their employer as qualifying for it.’
Uber in the Welcome Packet issued to new drivers referred to logging onto the Uber app as ‘going on duty’ and instructed drivers that: ‘Going on duty means you are willing and able to accept trip requests’. Logging onto the Uber app was thus presented by Uber London itself to drivers as undertaking an obligation to accept work if offered. The employment tribunal also found that the third in the graduated series of messages sent to a driver whose acceptance rate of trip requests fell below a prescribed level included a statement that ‘being online with the Uber app is an indication that you are available to take trips, in accordance with your Services Agreement.’ The Working Time Regulations accordingly applied whilst the driver was logged onto the App.
Judges:
Lord Reed, President, Lord Hodge Deputy President,
Lady Arden, Lord Kitchin, Lord Sales, Lord Hamblen
Lord Leggatt
Citations:
[2021] UKSC 6, UKSC 2019/0029, [2021] WLR(D) 108
Links:
Bailii, Bailii Summary, Bailii Issues and Facts, SC Judgment, SC Summary Video, SC Summary, SC 21 Jul 2020 am Video, SC 21 Jul 2020 pm Video, SC 22 Jul 2020 pm Video, SC 22 Jul 2020 am Video, WLRD
Statutes:
Private Hire Vehicles (London) Act 1998, Private Hire Vehicles (London) (Operators’ Licences) Regulations 2000 9(3), National Minimum Wage Act 1998, Working Time Regulations 1998, Employment Rights Act 1996 203(1)
Jurisdiction:
England and Wales
Citing:
At EAT – Uber Bv v Aslam and Others (Jurisdictional Points – Worker, Employee or Neither : Working Time Regulations) EAT 10-Nov-2017
Uber drivers are workers
JURISDICTIONAL POINTS – Worker, employee or neither
WORKING TIME REGULATIONS – Worker
‘Worker status’ – section 230(3)(b) Employment Rights Act 1996 (‘ERA’), regulation 36(1) Working Time Regulations 1998 (‘WTR’) and section 54(3) . .
Appeal from (CA) – Uber Bv and Others v Aslam and Others CA 19-Dec-2018
Uber drivers are workers
The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers.
Held: The appeal failed (Underhill LJ dissenting) The . .
Cited – Autoclenz Ltd v Belcher and Others CA 13-Oct-2009
Car Valeters contracts misdescribed their Duties
The claimants worked cleaning cars for the appellants. They said that as workers they were entitled to holiday pay. The appellant said they were self-employed.
Held: The contract purported to give rights which were not genuine, and the . .
Cited – Autoclenz Ltd v Belcher and Others SC 27-Jul-2011
Car Cleaning nil-hours Contractors were Workers
The company contracted with the claimants to work cleaning cars. The company appealed against a finding that contrary to the explicit provisions of the contracts, they were workers within the Regulations and entitled to holiday pay and associated . .
Cited – Clyde and Co LLP and Another v van Winkelhof SC 21-May-2014
Solicitor Firm Member was a Protected Worker
The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found . .
Cited – Collector of Stamp Revenue v Arrowtown Assets Ltd 4-Dec-2003
(Hong Kong Final Court of Appeal) The court was asked as to the accounting treatment of interests incurred in the development for the purpose of generating the profits, and therefore whether the relevant Ordinance prohibited the capitalisation of . .
Cited – UBS Ag and Another v Revenue and Customs SC 9-Mar-2016
UBS AG devised an employee bonus scheme to take advantage of the provisions of Chapter 2 of the 2003 Act, with the sole purpose other than tax avoidance, and such consequential advantages as would flow from tax avoidance. Several pre-ordained steps . .
Cited – McMeechan v Secretary of State for Employment CA 11-Dec-1996
The respondent as a temporary worker was entitled to be treated as an employee of an agency within the contract governing the particular engagement where money was due when the agency went into liquidation. He was therefore able to claim against the . .
Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .
Cited – Byrne Brothers (Formwork) Limited v Baird EAT 18-Sep-2001
EAT The Tribunal was asked whether the claimant was a worker within the meaning of the Regulations and so entitled to their protection in receiving holiday pay.
Held: The appropriate classification of a . .
Cited – Allonby v Accrington and Rossendale College for Education and Employment ECJ 13-Jan-2004
ECJ Principle of equal pay for men and women – Direct effect – Meaning of worker – Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by . .
Cited – Cornwall County Council v Prater CA 24-Feb-2006
The claimant worked for the local authority under a series of contracts. The employer denied that she had been continuously employed and there was no ‘irreducible minimum mutual obligation necessary to create a contract of service’. There were times . .
Cited – James v Redcats (Brands) Ltd EAT 21-Feb-2007
EAT National Minimum Wage
Who is a ‘worker’?
Was the Appellant who worked as a courier for the Appellant company, providing her own vehicle, a worker or home worker within the meaning of ss.54(3) and . .
Cited – Union Syndicale ‘Solidaires Isa’ Re ECJ 14-Oct-2010
ECJ Social policy – Protection of the safety and health of workers – Directive 2003/88/EC – Organisation of working time – Articles 1, 3 and 17 – Scope – Casual and seasonal activity of persons employed under an . .
Cited – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Cited – McCormick v Fasken Martineau DuMoulin LLP 22-May-2014
(Supreme Court of Canada) Human rights – Discrimination – Employment – Age – Law firm partnership agreement containing provision relating to retirement at age 65 – Equity partner filing complaint with Human Rights Tribunal arguing provision . .
Cited – Fenoll v Centre d’aide par le travail La Jouvene ECJ 12-Jun-2014
ECJ Advocate General’s Opinion – Social policy – Concept of worker – Directive 2003/88/EC -No admitted to a help center by work – Handicapped person – Right to paid annual leave – Charter of Fundamental Rights – . .
Cited – First Tower Trustees Ltd and Another v CDS (Superstores International) Ltd CA 19-Jun-2018
Grant of lease, but property badly contaminated with asbestos.
The Court recognised a principle of ‘contractual estoppel’ – whereby parties can bind themselves by contract to accept a particular state of affairs even if they know that state of . .
Cited – AFMB Ltd v Raad van bestuur van de Sociale verzekeringsbank ECJ 16-Jul-2020
(Grand Chamber) Reference for a preliminary ruling – Migrant workers – Social security – Legislation applicable – Regulation (EEC) No 1408/71 – Article 14(2)(a) – Concept of ‘person who is a member of the travelling personnel of an undertaking’ – . .
Cited – Mingeley v Pennock and Another (T/A Amber Cars) CA 9-Feb-2004
The claimant taxi driver sought to assert race discrimination. The respondent argued that he had not been an employee, but an independent contractor. The Claimant owned his own vehicle and paid the respondents minicab operators pounds 75 per week . .
Cited – Commissioners for Her Majesty’s Revenue and Customs v RBS Deutschland Holdings ECJ 30-Sep-2010
ECJ Opinion – Interpretation of Article 17(3)(a) of the Sixth VAT Directive – Transactions carried out with the sole aim of obtaining a tax advantage – Provision of vehicle leasing services in the United Kingdom . .
Cited – Revenue and Customs v Secret Hotels2 Ltd SC 5-Mar-2014
The Court was asked as to: ‘the liability for Value Added Tax of a company which markets and arranges holiday accommodation through an on-line website. The outcome turns on the appropriate characterisation of the relationship between the company, . .
Cited – Pimlico Plumbers Ltd and Another v Smith SC 13-Jun-2018
The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s . .
Cited – Yuen v The Royal Hong Kong Golf Club PC 28-Jul-1997
(Hong Kong) The applicant was dismissed as a golf caddie after nine years. The Club denied that he had ever been an employee. He was issued by the club with a number, a uniform and a locker. Caddying work was allocated to available caddies in strict . .
Cited – Khan v Checkers Cars Ltd EAT 16-Dec-2005
EAT The claimant worked as a private hire car driver for the respondent company which operated a taxi service based at Gatwick Airport. The claimant owned and was responsible for his own vehicle. He paid his own . .
Distinguished – Stringfellow Restaurants Ltd v Quashie CA 21-Dec-2012
The company appealed against a decision that the claimant, a lap dancer at their premises, had been an employee. She performed for the entertainment of guests at the respondents’ clubs. She paid the respondent a fee for each night worked. Doing so . .
Cited – Clark v Oxfordshire Health Authority CA 18-Dec-1997
A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir . .
Cited – Nethermere (St Neots) Ltd v Taverna and Gardiner CA 1984
The court considered what elements must be present to create a contract of employment.
Held: Stephenson LJ said: ‘There must . . be an irreducible minimum of obligation on each side to create a contract of service.’
Kerr LJ said: ‘The . .
Cited by:
Cited – Stuart Delivery Ltd v Augustine CA 19-Oct-2021
Obligation to Perfom Work Personally was Critical
This appeal concerns the status of a courier delivering goods by moped. The question on the appeal is whether an employment tribunal was entitled to find that the claimant, Mr Augustine, was a worker within the meaning of section 230(3)(b) of the . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 09 February 2022; Ref: scu.658678