The Supreme Court has today (19 February 2021) handed down its decision in the case of Uber BV and others (Appellants) v Aslam and others (Respondents)  UKSC 5. The Supreme Court ruled unanimously to dismiss Uber’s appeal.
In doing so, The Supreme Court upheld the Employment Tribunal’s decision that Uber drivers are ‘workers’ for the purpose of rights under the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998.
The Supreme Court’s judgment outlines the proper approach to determining whether or not an individual is a worker, within the meaning and intent of the relevant employment legislation. The legislation is intended to give certain protections to vulnerable individuals who have little or no say over their pay and working conditions, because they are in a subordinate and dependant position in relation to a person or organisation, which exercises control over their work. The legislation also prohibits employers from contracting out of its provisions.
Applying the test for a ‘worker’ in light of the legislative purpose, the Supreme Court decided that the Employment Tribunal was justified in finding that the Claimants were working for and under contracts with Uber.
Lord Leggatt stated, the Supreme Court’s Judgment “emphasised five aspects of the Tribunal’s findings in particular supported that conclusion”:
- “Where a ride is booked through the Uber application (App), it is Uber who sets the fare. Drivers are not permitted to charge more than the fare calculated by the app. It is therefore Uber which dictates how much drivers are paid for the work they do.
- The contract terms on which drivers perform their services, are imposed by Uber. Drivers have no say in them.
- Once the driver has logged on to the App, the driver’s choice about whether to accept requests for rides is constrained by Uber. One way in which this is done is by monitoring the driver’s rate of acceptance and cancellation of trip requests. Uber imposes what amounts to a penalty on the driver if too many trip requests are declined or cancelled. This consists of automatically logging the driver off the App for 10 minutes, so preventing the driver from working; until allowed to log back on again.
- Uber also exercises significant control over the way in which drivers deliver their services. One of several methods mentioned in the Judgment is the use of a rating system. After each trip, the passenger is asked to rate the driver on a scale of 1-5. Any driver who fails to maintain the required average rating will receive a series of warnings. If the average rating does not improve, their relationship with Uber will be terminated.
- Uber restricts communications between passenger and driver to the minimum necessary to perform the particular trip. Uber takes active steps to prevent drivers from establishing any relationship with a passenger capable of extending beyond the individual ride.”
When considering these factors together, the transportation service performed by drivers and offered to passengers through the App is very tightly defined and controlled by Uber. Drivers are in a positon of subordination and dependency in relation to Uber. Such that they have little or no ability to improve their economic position through professional or entrepreneurial skill. In practice, the only way in which they can increase their earnings, is by working longer hours, while constantly meeting Uber’s measures of performance.
The Supreme Court also upheld the finding of the Employment Tribunal that, for the purposes of the legislation, the Claimant’s working time was not limited as Uber has argued, to periods when they were actually driving passengers to their destinations. It also included any period when the driver was logged into the App in the relevant territory and was ready and willing to accept trips.
For these and other reasons, which are set out in full within the full Judgment, the Supreme Court decided that Uber’s appeal is dismissed and that the Employment Tribunal was right to find that Uber drivers are ‘workers’ who therefore qualify for the rights conferred on workers by employment legislation.