The Supreme Court’s recent decision on the ‘Uber drivers’ case – Uber BV and others v Aslam and others – is not just significant for those directly involved, but also potentially for many businesses and individuals who operate within the gig economy.
Last Friday, the highest court in the land brought the long-running case to an end by upholding the conclusion that yes, Uber’s drivers were indeed workers – a definitive answer to the question of whether they are fully self-employed, or fall within the statutory definition of ‘workers’ who have additional rights.
It is that ‘worker’ status and the accompanying rights that hold particular importance for those involved in the case – and potential relevance too, for other businesses that operate flexible labour models.
‘Worker’ status and its importance to the claimants
The main thrust of the Uber drivers’ case centred on the legal concept of a ‘worker,’ which was created by the Employment Rights Act 1996 and effectively establishes a status between a full employee and an independent contractor.
An individual may not have (or want) the necessary closeness of relationship with the party receiving their services to qualify as an employee, but if they provide those services personally to someone who is not a client or a customer, they may be a worker.
The value of the term ‘worker’ to the claimants in the Uber case is clear.
While workers do not have the full range of rights and protections available to employees, they are entitled – unlike independent contractors – to some, including:
- Paid annual leave and other breaks under the Working Time Regulations 1998;
- The National Minimum Wage;
- Protection against unauthorised deductions from their pay; and
- The right to make a claim if they are discriminated against under the Equality Act 2010 or mistreated as a whistleblower.
The Supreme Court concluded that the original employment tribunal was entitled to decide the drivers were workers, based on the specifics of the relationship.
A central theme was that the drivers’ terms were ‘very tightly defined and controlled’ by Uber, from deciding on who could become a driver, to setting their fares and routes and regulating their performance and conduct.
The court rejected Uber’s argument that the drivers were contracting with passengers rather than Uber itself, citing its practice of restricting interaction between driver and passenger to the bare minimum.
The question of when workers were actually working
The drivers’ claims raised a second issue about their status – when were they ‘working’?
The answer to that question has a bearing on the hours Uber was obliged to pay them for, whether their earnings were above the National Minimum Wage threshold, and how they accrued breaks and holidays.
At the previous Court of Appeal stage, it was decided that the drivers needn’t be driving passengers in order to be working.
A driver would also be working when logged onto the relevant app to indicate their availability to take fares, and in the particular territory where they were authorised by Uber to operate.
This inclusion of waiting time was also advantageous to the drivers as they were entitled to be paid for it, plus it counted towards their accrual of rest breaks and paid leave.
Again, the Supreme Court agreed that this conclusion was reasonable based on the facts.
Where to now?
Since its earliest stages, the rulings in this case have been of interest to many operators of flexible labour models throughout the UK.
The test of worker (or indeed employee) status depends on a number of factors, some of which may point in favour of that outcome and others which may go against it.
The very specific way that Uber engages its drivers was closely analysed, and the high degree of control it exercises over its drivers from recruitment onwards was deemed significant.
Other operators’ models may sit at a different point on the spectrum and, if challenged, an alternative outcome may be reached.
Uber itself though, will clearly need to review its operations, not least to deal with around 1,000 similar claims that have reportedly been lodged and were awaiting the Supreme Court’s decision on Friday.
Brian Campbell is a legal director and employment specialist at Brodies LLP.