Home Insights Breaking: Uber loses again as Supreme Court says its drivers are workers

Employment law

Breaking: Uber loses again as Supreme Court says its drivers are workers

Scott Milligan | 19 Feb 2021

INSIGHTS

Today, the Supreme Court delivered its hotly anticipated decision in the highly significant case of Uber BV and others v Aslam and others, drawing a close to a lengthy process that commenced in the employment tribunal back in 2016.

Back then, the tribunal ruled in favour of the group of Uber drivers, who had claimed that they were workers engaged by Uber rather than being self-employed, and were accordingly entitled to certain rights (including matters such as minimum wage, holiday pay and rest breaks for example).

Drivers are workers not self-employed

It its ruling today, the Supreme Court has again ruled (unanimously) in favour of the group of drivers, coming to the same conclusion as previous courts, that the drivers are in fact workers – and not self-employed contractors – for the purposes of the relevant legislation.

The case reached the Supreme Court after multiple previous (and unsuccessful) appeals by Uber, and the ruling today in favour of the drivers is set to have potentially huge implications not only for Uber and the way that it operates, but for the UK’s wider “gig economy“, which currently has an estimated workforce of around 5.5 million people.

In coming to their decision, the Supreme Court set out to establish two significant issues:

Firstly, whether the Respondents were “workers” providing personal services to Uber; and
Secondly, if the Respondents were deemed to be workers, what periods constituted their “working time”.

With both of these issues now having been ruled on, the following is clear:

that the drivers for Uber are workers – not self-employed contractors, and are accordingly entitled to a range of rights and benefits; and
that the drivers are considered workers, and are available for work, at the point from which they open their app, to the time at which they close their app and not just when they are driving – a ruling that will be significant for the way that Uber currently operates.

Worker status and the ‘purpose’ of employment law

The judgement contained a useful discussion of relevant case law on worker status, and it is interesting to note that it found the correct approach was to consider the purpose of the relevant employment legislation. It concluded that the purpose is to give protection to vulnerable individuals who have little or no say over their pay and working conditions because they are in a subordinate and dependent position in relation to a person or organisation which exercises control over their work. It also noted that the legislation also precludes employers, frequently in a stronger bargaining position, from contracting out of these protections.

The tribunal’s findings as to the key aspects that justified the conclusion of worker status were supported by the Supreme Court. These included Uber setting the fare for the journey; the contract terms between the parties being imposed by Uber; Uber being able to constrain the driver’s choice of accepting requests; Uber having significant control over the way in which the services were delivered; and the restriction by Uber of direct communications between the driver and passenger. Accordingly, the service was tightly defined and controlled by Uber and, as such, the drivers performing this service were found to be workers.

Workers v employees

It should be noted however, that whilst the ruling will of course be highly significant, workers are not entitled to the totality of employment rights, and do not have the same rights as employees, who are entitled to additional statutory employment rights such as protection from unfair dismissal and statutory redundancy payments.

Further, this case was based on the particular facts of the service provided by these drivers and their relationship with Uber. Other self-employment relationships may be of a completely different nature, and it does not mean that all such individuals require to be regarded as workers – it will dependent on the facts of each situation.