Cloisters congratulates Jason Galbraith-Marten QC and Sheryn Omeri for winning one of the most important employment cases of our generation, Aslam & Farrar v Uber on behalf of Uber drivers, Yaseen Aslam and James Farrar, who, the Supreme Court has finally and conclusively determined, are workers and not independent contractors. This entitles them to be paid minimum wage and holiday pay, and protects them from detriment for whistleblowing.
The Supreme Court’s decision means that all Uber drivers employed by Uber on the same or similar terms as Messrs Aslam and Farrar are also workers within the meaning of the Employment Rights Act 1996, and therefore must be paid at least minimum wage and holiday pay, and may not be discriminated against or subjected to detriment because they have blown the whistle. It also has implications for everyone engaged in the gig economy.
A copy of the judgment is available here.
A bench of six Supreme Court Justices, today, unanimously dismissed Uber’s appeal against the finding of the London Central Employment Tribunal, made in October 2016, that Uber drivers are workers, within the meaning of that term in s.230 of the Employment Rights Act.
Delivering the judgment of the Court, Lord Leggatt held that there appeared to be no factual basis for Uber’s contention that Uber London acted merely as an agent for drivers when accepting private hire bookings holding instead, that it is difficult to see how Uber’s business could operate without Uber London entering into contracts with drivers (even if only on a per trip basis) under which drivers undertake to provide services to carry out the private hire bookings accepted by Uber London, thereby making them “workers” and Uber their employer.
In a far-reaching judgment Lord Leggatt held that the task of an Employment Tribunal or Court when faced with claims by gig economy workers is not simply to determine whether a purported worker’s contract entitles him or her to minimum wage or holiday pay, but whether he or she falls within the definition of a “worker” so as to qualify for these rights, irrespective of the terms of his or her contract with the gig economy company. In order to determine whether someone falls within the definition the tribunal must consider the purpose of a particular legislative provision. In the case of legislation such as the National Minimum Wage Act, the Working Time Regulations and the Employment Rights Act, their purposes were to protect vulnerable workers from being paid too little, being required to work excessive hours, or being subjected to other forms of unfair treatment (for whistleblowing for example).
Once a person is determined to fall within the definition of “worker” no term in a contract can– whether directly or indirectly – deprive him or her of the rights for which he or she qualifies. Lord Leggatt remarked that “to treat the way in which the relationships between Uber, drivers and passengers are characterised by the terms of the Services Agreement as the starting point in classifying the parties’ relationship,… would…be to accord Uber power to determine for itself whether or not the legislation designed to protect workers will apply to its drivers.” This would run contrary to the prohibition on contracting out of the legislation contained in each of the Acts relied on by the Claimant Uber drivers.
In relation to Uber and its drivers specifically, the Supreme Court held that of first and major importance in the determination that drivers fall within the definition of “worker” is that drivers have no say in the remuneration paid to them for their work, which is determined entirely by Uber. Secondly, the contractual terms on which drivers provide their services are dictated by Uber. Thirdly, once a driver is logged on to the Uber app, his or her ability to accept or refuse requests for rides is constrained by Uber. That is, if his or her acceptance falls below a certain level determined by Uber, he or she will be logged off the Uber app and prevented from logging back on for a time. Fourthly, Uber exercises a significant degree of control over the way drivers deliver their services by vetting the type of car they may use, directing them to the location at which they pick up passengers and from there to the passenger’s destination. Uber also uses the driver rating system as an internal tool for managing driver performance and making decisions to terminate the access of certain drivers. Fifthly, Uber restricts the communication between the driver and the passenger to the minimum required for the driver to undertake the trip and Uber takes active steps to prevent drivers from establishing any relationship with passengers which could extend beyond one trip.
Taking these factors together, the Supreme Could held that the transportation service performed by drivers and offered to passengers through the Uber app is very tightly defined and controlled by Uber. It is designed and organised to provide a standardised service from which Uber, rather than individual drivers, obtains the benefit of customer loyalty and goodwill. As a result, it was clear that drivers are “workers.”
This is a significant victory for Uber drivers in the UK and indeed, for all gig economy workers. Jason and Sheryn have acted for Mr Aslam and Mr Farrar since 2017, instructed by Paul Jennings and Rachel Mathieson of Bates Wells solicitors, defending Uber’s appeals before the Employment Appeal Tribunal, the Court of Appeal and finally the Supreme Court.