A landmark decision from the Supreme Court will make it easier to establish individuals as “workers” and therefore entitled to basic employment rights
In the long running matter of Uber BV and others vs Aslam and others, the Supreme Court determined that Uber drivers are workers for the purposes of employment law legislation.
The claimants were Uber drivers and brought Employment Tribunal claims in respect of Uber’s failure to pay the national minimum wage and for annual leave. In order to pursue those claims, the drivers had to first establish they were workers for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998.
The definition of a worker in the legislation is the same: a worker is an individual who works under any contract, whereby they undertake to personally perform work or services for the other party to the contract.
Uber argued that the drivers were genuinely in business on their own account and that any contract for services was between the driver and their passengers, with Uber merely acting as the drivers’ agent.
Uber relied on the terms both of agreements between them and drivers, but also the agreement accepted by passengers when they download the Uber app, and which expressly states that Uber is only acting as an agent. They said this was standard practice for minicab firms.
The drivers asserted that the written agreements were a sham and in reality they worked for Uber, and were subject to a significant degree of control and performance management procedures that were exactly like those which would apply to workers. They had little, if any, opportunity to develop a business as Uber prevented them from contacting passengers directly and at the time of the original hearing, they were not even told the trip destination until they had accepted the “trip request”. They also had to provide services themselves and could not use a “substitute”.
The decision
In 2016, the Employment Tribunal found that the drivers were workers for the purposes of the relevant legislation and therefore entitled to proceed with their claims. It further held the drivers’ working time commenced as soon as they turned on their app, were situated in the territory they were authorised to work and were available and willing to accept trips.
The decision was upheld by the Employment Appeal Tribunal (2017), the Court of Appeal (2018) and now finally by the Supreme Court in February 2021.
In a ground-breaking decision, the Supreme Court held unanimously that whether an individual is a worker is not determined by reference to the terms of any contract or agreement they have entered into, but instead by asking whether it was Parliament’s intention that they should fall within the scope of statutory employment protection. That will largely depend on the degree of subordination to, and control by, the employer.
The court recognised that the purpose of employment legislation is to protect vulnerable workers and it would undermine that purpose if employers were able to draft contracts that, whether directly or indirectly, had the effect of preventing individuals from enforcing their rights. The decision is very welcome and will make it much easier to establish that individuals are entitled to basic employment rights in future.
Joanne Galbraith-Marten
Head of Legal (Employment)
