Uber granted right to appeal against ‘driver as worker’ ruling

26/5/2017

Guest blog by Matthew Peach

Uber has been granted the right to appeal against last year’s ruling that its UK drivers should be treated as workers, with rights to the minimum wage and holiday pay. The Employment Appeal Tribunal (“EAT”) has scheduled a two-day hearing starting on 27 September. Uber is expected to argue that the 2016 tribunal made inconsistent and perverse findings and erred in law, according to Uber’s notice of appeal.

However, the GMB union, which supported the claimants in Aslam and Farra v Uber (EAT 2202550 / 2015), said it remains confident that the courts will uphold the original judgment that drivers have worker status.

The September 2016 ruling meant that Uber drivers were entitled to the national minimum wage, to receive holiday and sick pay, and various other benefits, after the San Francisco-based technology firm initially lost the case brought by Aslam and Farrar. Uber argued that its drivers – which set their own hours and provide their own car and fuel – are self-employed, with the Uber app acting only as a channel between drivers and passengers. Nowadays, at least 40,000 people in the UK drive for Uber, which says that drivers are free to work other jobs and have no minimum hours, and has said that in 2016 the average driver made £15 an hour after Uber’s charge.

The Employment Tribunal found that the Uber drivers were employed as workers within the meaning of the Employment Rights Act 1996, National Minimum Wage Act 1998, and the Working Time Regulations 1998. The tribunal also found that the claimants were engaged in so-called “unmeasured work” for the purposes of the National Minimum Wage Regulations, and that their working time should be calculated in accordance with the Working Time Regulations.

After the ruling Uber commented: “Almost all taxi and private hire drivers in the UK have been self-employed for decades and with Uber they have more control over what they do. Licensed drivers who use our app are totally free to choose if, when and where they drive with no shifts, minimum hours or uniforms. The vast majority of drivers who use Uber… want to remain [being] their own boss.

Following the April 2017 announcement that Uber’s appeal would be heard, Maria Ludkin, legal director at GMB asked: “Why is Uber appealing the employment court’s ruling if they are accepting responsibility for workers’ rights. [We contend that] Uber has demonstrated it is acknowledging its responsibilities as an employer.” This contention is based on Uber accepting that some drivers are to be given access to illness and injury cover under a new policy by the company.

In a separate but related development in May 2017, a group of minicab drivers, many of them Uber drivers, have joined London black-cab drivers and unions to call for improved workers’ rights to be a condition of Uber being able to renew its London licence. The group, United Private Hire Drivers, which says it has 1,200 members and organised a go-slow protest blocking roads in the capital in November 2016, called on Transport for London to insist Uber drivers and other minicab drivers are guaranteed basic employment rights, including the minimum wage and holiday pay.

Backgrounder: employee or worker?

Whether a person is considered to be an employee or otherwise (such as self-employed) is crucial because it determines what employment rights exist. For example, only employees are entitled to claim unfair dismissal, redundancy payments, notice pay, the right to receive written reasons for dismissal and various family leave rights, including the right to flexible working, parental leave and paternity leave.

Employee: According to s. 230(1) of the Employment Rights Act 1996, an employee is someone “who works under a contract of employment”. But this is not defined by statute so the courts have constructed a number of tests to help them decide whether someone is an employee.

Such cases are decided on their own merits, but there are some essential elements that must be satisfied: 

  • The individual has to have a contract with the employer
  • The individual has to carry out the work personally
  • There has to be “mutuality of obligation” between the two parties
  • The employer has to have “control” over the work that the employee does

Other considerations in such cases include: is there a contract; what is the nature of the work; what is the mechanism of control associated with the job. Employment tribunals also take into account the intention of the parties, the extent to which a person doing the work provides their own equipment, and their degree of financial risk. Even if a person is not considered to be an employee, they may be a “worker”, which gives them some rights, although not as many.

Worker: A worker is defined in regulation 2 (1) of the Working Time Regulations 1998 as someone who works under a contract of employment or “any other contract, whether express or implied…whereby the individual undertakes to do or perform personally any work or services for another party to the contract”, provided they are not a client or customer of the individual’s profession or business. This therefore includes many casual and freelance workers.

The Uber appeal will be heard in September 2017. Watch this space for updates!

Matthew Peach, LLB (Hons.) is a freelance writer with substantial experience reporting on current affairs, business and technology. He contributes regularly to optics.org and opticalconnectionsnews.com.

Contact: matthew.peach@btinternet.com Tel. 07787 510949 Twitter @mattslawmedia

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