In a much-anticipated decision, the Employment Appeal Tribunal dismissed Uber’s appeal against the employment status of two London drivers, writes Amanda Chadwick.
In November 2016, two drivers supported by the GMB union successfully claimed that they were ‘workers’ rather than self-employed contractors, as asserted by Uber. The tribunal found the written terms governing the relationship between Uber and their drivers were not consistent with what happened in practice, allowing them to assess the reality of the situation. The tribunal judged Uber exercised a significant degree of control over their drivers, including setting the price of each trip. It found the drivers were workers, saying that the notion that 30,000 London drivers were all in business on their account was “faintly ridiculous” and went on to determine that drivers were working when they entered their territory, with their app switched on, and were ready and willing to accept trips.
Uber appealed the decision to the Employment Appeal Tribunal (EAT), contending they had failed to apply agency principles correctly. In essence, Uber said, they acted as an agent for drivers by connecting them to passengers and charging commission for this service.
The EAT dismissed Uber’s appeal, finding the tribunal was entitled to reach the decision that the drivers were workers. In their judgment, the tribunal had correctly looked beyond the contractual relationship and found, in reality, the drivers personally undertook work as part of Uber’s business. The EAT also supported the working time decision. Drivers did not have to turn their apps on however, once logged on, there was an expectation that drivers would “accept at least 80% of trip requests” to retain their account status. This meant there was an obligation to work during the times they were in their territory, available to work, with the app turned on.
For Uber drivers, this decision confirms their status is that of a ‘worker’ meaning they are legally entitled to receive worker rights. This includes the right to receive an average of National Minimum or Living Wage for each hour worked, paid holiday, pension contributions, minimum rest periods and whistleblowing protection. Uber may also face significant back pay for claims such as unpaid holidays.
Uber have already indicated they intend to appeal the decision. A further EAT hearing will take place in the Dewhurst v CitySprint case at the end of November 2017 and the Supreme Court will also consider employment status at the beginning of 2018 in the Pimlico Plumber case. The success of the Uber drivers is likely to be the tip of the iceberg, as many more employment tribunal claims challenging status are currently being lodged, including claims against Deliveroo and The Doctors Laboratory.
- Amanda Chadwick is an employment law and health & safety presenter at Peninsula Business Services
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