Establishing an individual’s employment status is an important but often difficult exercise to undertake and we were reminded of this by the recent landmark Employment Tribunal ruling Aslam and ors v Uber BV and ors https://www.judiciary.gov.uk/judgments/mr-y-aslam-mr-j-farrar-and-others-v-uber/ The judgement is worth reading because it highlights just how unclear the definition of worker is, perhaps more so the case concerns new technology and new ways of working. It also makes clear that it is not a simple tick box exercise which, when completed, can definitively determine an individual’s status rather, there is a statutory definition of “worker” as well a vast number of cases decided over the years to consider. This judgement does not change anything and it is only the first step as Uber has said that it will appeal to the Employment Appeal Tribunal.
So what where the facts and circumstances in the Uber case that helped to identify the drivers as workers? With regard to the nature of the relationship between Uber and its drivers (or “partnership” as preferred by Uber), the Tribunal noted that while the terms for passengers state that Uber is the drivers’ agent and drivers can accept or decline work through the Uber app, the following points are relevant:
- Uber interviews and recruits its drivers. Drivers have to present themselves and their documents to Uber before being accepted, which amounted to an interview albeit not a searching one.
- The driver is given the first name, but not the surname, of the passenger.
- The driver is not aware of the destination of the passenger until the passenger has been collected.
- The driver is expected to follow the route as suggested by the app and any deviance from this route must be justified by the driver.
- The calculation of the fare is done by Uber, although the driver can charge a lesser, but not a greater, fare than that suggested.
- Uber handles passenger complaints and deductions can be made to the drivers’ payments if passengers complain they have been overcharged, sometimes without involving the driver affected.
- Uber accepts the risk of loss for example, where a passenger soils a vehicle or in the case of fraud, which if the drivers were genuinely in business on their own account would fall on them.
- Drivers supplied their own vehicles and maintained them.
- Drivers are not at liberty to exchange contact details with passengers.
- Drivers who decline 3 trips in a row are liable to be forcibly logged off the app for 10 minutes.
- Drivers can work for other organisations as well as Uber.
- Uber does not provide any clothing or uniform.
- Uber’s rating system was found to be a form of performance/disciplinary procedure.
- Uber reserves the right to unilaterally to amend the drivers’ terms.
The Tribunal also regarded with great scepticism Uber’s claim that they were not providing transportation systems but were in fact a technology services provider, saying that “the notion that Uber is a mosaic of 30,000 small businesses linked by a common platform is faintly ridiculous”.
The main reasons for the decision are as follows:
- no driver was in a position to grow their own business, nor were they provided with any leads;
- the supposed driver/passenger contract was pure fiction which bore no relation to the real dealings and relationship between the parties;
- it was not real to regard Uber as working for the drivers – the only sensible interpretation was that the relationship was the other way around; and
- drivers provided their work for Uber pursuant to a contractual relationship. The drivers made themselves available to carry Uber passengers to their destinations for reward.
What is interesting is that the Tribunal said that none of their reasoning should be taken as doubting that there could exist a model in which drivers were not employed – it was just that this particular model did not achieve that aim.
What does this mean for the drivers? A worker is entitled to a number of employment rights including:
- National minimum wage
- Statutory sick pay
- A maximum 48 hour average working week
- Daily and weekly rest breaks
- Whistleblower protection
Merely changing contracts will not be enough to avoid more cases being brought by drivers. For example, a worker who does not receive the national minimum wage may bring a claim for an unlawful deduction from wages seeking payment of arrears going back up to 2 years from the date of the deduction or the last in a series of deductions. Alternatively, the worker may bring a breach of contract claim in the civil courts seeking payment of arrears going back up to 5 years before the claim in Scotland.
Although this is only a first step, individuals are being advised by their trade union and legal advisors to proceed on the basis that they are workers and look to enforce their rights. Businesses should not only revisit its contracts and agreements they should also ask themselves what the practical reality bear is and do they need to rethink their model if they wish to avoid worker status.
Donna Reynolds is an experienced Employment Solicitor and HR Advisor advising SMEs in Fife, Edinburgh and across Scotland on Employment Law and HR issues.