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
‘Worker status’ – section 230(3)(b) Employment Rights Act 1996 (‘ERA’), regulation 36(1) Working Time Regulations 1998 (‘WTR’) and section 54(3) National Minimum Wage Act 1998 (‘NMWA’).
‘Working time’ – regulation 2(1) WTR
The Claimants were current or former Uber drivers in the London area who, along with others, had brought various claims in the Employment Tribunal (‘the ET’), which required them to be ‘workers’ for the purposes of section 230(3)(b) Employment Rights Act 1996 (‘ERA’), regulation 36(1) Working Time Regulations 1998 (‘WTR’) and section 54(3) National Minimum Wage Act 1998 (‘NMWA’). The ET concluded that any Uber driver who had the Uber app switched on, was within the territory in which they were authorised to work (here, London) and was able and willing to accept assignments was working for Uber London Ltd (‘ULL’) under a ‘worker’ contract and was, further, then engaged on working time for the purposes of regulation 2(1) WTR.
The Appellants (‘Uber’) appealed, contending (relevantly) as follows:
(1) That the ET had erred in law in disregarding the written contractual documentation. There was no contract between the Claimants and ULL but there were written agreements between the drivers and Uber BV and riders, which were inconsistent with the existence of any worker relationship. Those agreements made clear, Uber drivers provided transportation services to riders; ULL (as was common within the mini-cab or private hire industry) provided its services to the drivers as their agent. In finding otherwise, the ET had disregarded the basic principles of agency law.
(2) The ET had further erred in relying on regulatory requirements as evidence of worker status.
(3) It had also made a number of internally inconsistent and perverse findings of fact in concluding that the Claimants were required to work for Uber.
(4) It had further failed to take into account relevant matters relied on by Uber as inconsistent with worker status and as, on the contrary, strongly indicating that the Claimants were carrying on a business undertaking on their own account.
Held: dismissing the appeal

The ET had been entitled to reject the characterisation of the relationship between Uber drivers and Uber, specifically ULL, in the written contractual documentation. It had found (applying Autoclenz Ltd v Belcher and Ors [2011] ICR 1157 SC(E)) that the reality of the situation was that the 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. Having thus determined the true nature of the parties’ bargain, the ET had permissibly rejected the label of agency used in the written contractual documentation. The ET had not thereby disregarded the principles of agency law but had been entitled to consider the true agreement between the parties was not one in which ULL acted as the drivers’ agent.

In carrying out its assessment in this regard, the ET was not obliged to disregard factors simply because they might be seen as arising from the relevant regulatory regime; that was part of the overall factual matrix the ET had to consider. In any event, in this case, the ET’s findings on control were not limited to matters arising merely as a result of regulation.

In considering the ET’s findings, it was necessary to have regard to its Judgment as a whole. Doing so, it was apparent that they were neither inconsistent nor perverse. In particular, the ET had permissibly concluded there were obligations upon Uber drivers that they should accept trips offered by ULL and that they should not cancel trips once accepted (there being potential penalties for doing so). It was, further, no objection that the ET’s approach required the drivers not only to be in the relevant territory, with the app switched on, but also to be ‘able and willing to accept assignments’; that was consistent with Uber’s own description of a driver’s obligation when ‘on-duty’. These findings had informed the ET’s conclusions not just on worker status but also on working time and as to the approach to be taken to their rights to minimum wage. Inevitably the assessment it had carried out was fact- and context-specific. To the extent that drivers, in between accepting trips for ULL, might hold themselves out as available to other PHV operators, the same analysis might not apply; hence the ET’s observation that it would be a matter of evidence in each case whether and for how long a driver remained ready and willing to accept trips for ULL.

[2017] UKEAT 0056 – 17 – 1011, [2017] WLR(D) 809, [2018] IRLR 97, [2018] ICR 453, [2018] RTR 14
Bailii, WLRD
Employment Rights Act 1996 230(3)(b), Working Time Regulations 1998 36(1), National Minimum Wage Act 1998 54(3)
England and Wales
CitedAutoclenz 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 . .
CitedRevenue 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 by:
Appeal fromUber 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 . .
At EATUber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors were 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 . .

Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 10 November 2021; Ref: scu.601923