Uber drivers – Supreme Court rules they are workers

More details from the Uber drivers case ……Updated March 2021, after the Supreme Court’s decision.

At the end of October 2016, an employment tribunal ruled that two Uber ‘test case’ drivers (James Farrar and Yaseen Aslam – out of a total of 25 individuals named on the case) were not self-employed independent contractors but workers (for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1988, and the Working Time Regulations 1998).

The decision meant the drivers were entitled to the national living / minimum wage, sick pay (SSP), holiday pay, rest breaks, protection under whistle-blowing laws, and pension contributions (under pension auto-enrolment laws).  As freelancers, they had no legal right to these benefits.

You can read the full details in our blog here.

The Tribunal was ultimately critical of Uber’s terms and conditions using “fictions, twisted language and even brand new terminology”, which did not reflect the reality of the situation of how they actually employ their drivers.

In November 2017, the Employment Appeal Tribunal agreed with the findings of the original ET and found that they were ‘workers’… Uber appealed to the Court of Appeal and this was heard in December 2018 – the CoA upheld the decision that Uber drivers are workers (although this was not a unanimous decision, one judge disagreed).

Uber were granted permission to appeal to the Supreme Court and the Supreme Court’s judgement on 19th February 2021 confirmed that they were workers.  The Supreme Court’s six judges unanimously agreed that the drivers were working “for and under” Uber, regardless of what the contract said – the service provided by the drivers was “very tightly defined and controlled by Uber” and they were “in a position of subordination and dependency in relation to Uber”.  The Court went onto say that the purpose of employment legislation was “to give protection to vulnerable individuals who have little or no say over their pay and working conditions” and that Uber, by drafting artificial contracts that intended to side-step basic employment rights, made the contracts void and unenforceable.

The Court also ruled that Uber must consider the drivers as workers from the time they log on to the app, until they log off.

You can read more details about the Supreme Court judgement (with a link to the full judgement) here, from lawyers TLT LLP.

Uber are unable to appeal this decision.  However, Uber’s Northern and Eastern Europe’s General Manager said that “We respect the court’s decision which focused on a small number of drivers who used the Uber app in 2016”.   Uber believes they are not obliged to apply the case decision to its other drivers – the General Manager went onto say that “we are committed to doing more and will now consult with every active driver across the UK to understand the changes they want to see”.

Lawyers acting for the claimants argue that Heywood’s statement iss misleading and Uber is trying to deter people from making a claim with this message.  Law firm Leigh Day, which is acting for more than 2,200 drivers, said that if Uber does not accept that the court’s ruling on Farrar and Aslam applies to all of its drivers, the existing linked cases will restart at the employment tribunal after being paused while the supreme court’s decision was awaited.  Law firm Keller Lenkner, which is representing more than 8,000 drivers, was contacted by about 1,000 more over the weekend.

Farrar and Aslam’s case will now return to a normal employment tribunal to determine the level of compensation for the workers, which Leigh Day estimate to be £12,000 each.

The case should have wide-ranging implications for everyone working in the gig economy, especially taxi drivers, couriers and delivery drivers, and several organisations are now calling on the Government to reform employment law by writing a definition of self-employment into law and ensuring that gig workers have access to all ‘worker‘ benefits.  Frances O’Grady, the general secretary of the TUC, said “No company is above the law.  Uber must play by the rules and stop denying its drivers basic rights at work”.

17th March 2021 update

In a surprising move, Uber announced that it would guarantee all its UK drivers (70,000?) entitlement to at least the national minimum wage, holiday pay (calculated at 12.07% of earnings) and automatic enrollment into a pension scheme, from 17th March 2021!  The drivers would retain the right to choose when they work.

However, the 2 original claimants in the long-running legal case (Farrar and Aslam), said that the minimum wage and holiday pay would only accrue from when a trip was accepted by a driver to when the passenger was dropped off, and does not apply to the whole time the drivers were logged onto the app – which is the ‘working time’ the Supreme Court laid out.  Farrar and Aslam said this meant that Uber drivers could miss out on up to 50% of potential earnings.  So, we’ll see where this goes next! But some good news at least!

(The Guardian/Observer published this article in December 2019 “Driven to the edge: life on the Christmas parcel delivery run“)