Fri 04 Jan 2019

Uber loses Court of Appeal employment status case

The Court of Appeal has upheld the judgement of the EAT that Uber drivers are workers, but the decision is not unanimous.

The case of Uber BV v Aslam & Ors has made its way to the Court of Appeal and, as many would have expected, the  judgement of the EAT that the drivers are in fact workers and not self employed contractors has been upheld.  However, it is a majority and not a unanimous decision. 

The original claims brought by a number of drivers related to a failure to pay the national minimum wage and a failure to provide paid annual leave.  One of the drivers had also brought a whistleblowing claim.  In order to bring these claims the drivers needed to be workers, and not self employed contractors.  The drivers successfully argued at a preliminary hearing that they were workers and this was upheld, on appeal, by the EAT.   

The appeal to the Court of Appeal was heard by three judges, two of whom (the "majority") held that the tribunal had been correct to find that the claimants were workers when they were in the territory in which they were licensed to use the app, had the app switched on and were ready and willing to work.  The majority also agreed with the Tribunal that the contractual terms (which indicated that Uber acted only as an intermediary providing booking and payment services with the drivers being independent contractors) did not reflect the practical reality of the relationship - essentially they were a sham and as such could be disregarded.   

However, it is the dissenting judgement that gig economy businesses are more likely to be interested in.  Lord Justice Underhill disagreed that the working arrangements were unrealistic, instead concluding that they were not much different from those commonly applied when taxis or mini cab owners are booked through an intermediary.  In his view there was therefore no basis upon which the Court could disregard the contractual terms setting out the relationship between the parties.   

Lord Justice Underhill also found that (if the drivers were in fact to be correctly classified as workers) the period during which a driver should be treated as a worker was limited to the moment they accepted a particular trip and not the longer period when the driver was in the territory with the app switched on - something which, if followed, in a higher court would reduce potential financial liabilities for Uber.   

It is of note that Lord Justice Underhill commented that his conclusion that the claimants were not workers was not a rejection of the view that those who provide personal services through internet platforms should enjoy the rights and protections of worker status, rather it was simply based on what he believed to be the correct construction of the legislation that is currently in force.  He commented that "If on that basis the scope of the protection does not go far enough the right answer is to amend the legislation". Making reference to the Taylor Review he also pointed out that Parliament was "inherently better placed" to assess the policy issues thrown up by the case.  

Uber have been granted permission to appeal to the Supreme Court and the company has confirmed that they intend to pursue that route. 

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