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Carol Shaw
Director, Head of Employment Law
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Uber petitions a ‘leapfrog’ appeal to the Supreme Court

by Carol Shaw | Nov 30, 2017 |
Man driving a car

Uber petitions a ‘leapfrog’ appeal to the Supreme Court over the EAT’s decision to uphold an Employment Tribunal’s decision that Uber drivers are ‘workers’.

What is a worker?

The term ‘worker’ is broad in the sense that it encompasses those who are ‘employees’ and individuals who work under a contract  to do or perform work or services for another party but not as client or customer for that party.

Workers’ rights

‘Employees’ are afforded a raft of employment rights that other ‘workers’ are not entitled to, for instance the right to a statutory redundancy payment or the right not to be unfairly dismissed.

However, the law recognises that there are fundamental rights that all ‘workers’ should be entitled to despite not having the status of ‘employee’, for instance the right to the national minimum wage and holiday pay.

Why did the Uber drivers issue proceedings?

The drivers issued proceedings against Uber claiming that they were not self-employed but were in fact ‘workers’ and as a result were entitled to workers’ rights.

Uber’s position was that drivers were not workers but were in fact self-employed and working in business on their own. Uber argued that it was nothing more than a “supplier of transportation services” which allowed drivers to pick-up passengers; Uber tried to rely on carefully worded contracts that referred to the drivers as self-employed.

What did the EAT conclude

The EAT upheld the Employment Tribunal’s judgment that the drivers were ‘workers’.

Why did the EAT consider the drivers to be workers.

In coming to its decision, the EAT took into consideration various factors in upholding that the drivers were workers, for instance, the fact that the drivers were required to accept at least 80% of trips offered to retain their account status and that there was no question of drivers being able to substitute their work to anyone else.

What appears to have been a particular sticking point for Uber is that the EAT agreed with the ET that the carefully drafted documentation upon which Uber relied to show the drivers were self-employed did not correspond with the practical reality of the situation.

The EAT rejected any suggestion that Uber was working for the drivers in being a “supplier of transportation services” and said that the only sensible interpretation was that the relationship was in fact the other way around ie the drivers were working for Uber.

The EAT noted that in a normal commercial environment the starting point will be the written contractual documentation, however, in this case, it noted that the ET had considered the contractual documentation should not be the end point and that it was required to consider the statutory provisions enacted to protect those who are often disadvantaged in any contractual bargain.

On the one hand, it is re-assuring to workers that this decision provides a clear warning to anyone who tries to mask behind carefully worded contracts which seek to undermine workers’ rights: the Tribunals will see past this and look at the true reality of the situation.

On the other, with the ever increasing ‘gig economy’ (of which it is estimated there are 5 million people working in this capacity in the UK) and the abolition of Tribunal fees in July 2017, will we see ‘gig economy workers’ trying to manipulate the system in the hope  of enforcing workers’ rights such as holiday pay? A recent ECJ case says that where a worker has not been allowed paid holiday, claims can be backdated to the commencement of the 1998 Working Time Regulations.

*Disclaimer: While everything has been done to ensure the accuracy of the contents of this article, it is a general guide only. It is not comprehensive and does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation.


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