In reality

When deciding whether drivers were workers in Uber BV v Aslam and ors, the Employment Appeal Tribunal (EAT) held that, although the relationship between the parties was presented in the written documentation as being one of agency, the tribunal was right to focus on what happened in reality between them.

Basic facts

Uber provides a range of passenger transportation options (depending on the vehicle being hired) through a smartphone app. After signing up online, prospective Uber drivers then had to personally attend a specified location where they were interviewed and given an induction. Under a contract with Uber, the drivers were given access to the app which they could not transfer to anyone else.

According to the written documentation between the two parties, the drivers were self-employed, and the company acted as their agent by facilitating an agreement between the driver and the passenger. In reality, however, Uber exercised control over the drivers in a number of ways. For instance, although drivers were theoretically free to accept or decline trips, they had to accept at least 80 per cent of requests. If they declined three in a row, they could be temporarily logged off the app. And although drivers could theoretically follow their own route, in reality they were expected to follow the route set out by the app’s mapping software. Drivers given bad ratings by passengers could be sent feedback by Uber, with an ultimate penalty of “deactivation” from the app.

A number of Uber drivers in London brought tribunal claims arguing that as workers under section 230(3)(b) of the Employment Rights Act, they were entitled to be paid the minimum wage and to have their working time calculated according to the Working Time Regulations (WTR).

Tribunal decision

Rejecting the notion that Uber in London was a “mosaic of 30,000 small businesses linked by a common ‘platform’ [as] faintly ridiculous”, the tribunal found that Uber needed a pool of drivers to be available as and when a demand for driving services arose, so that they could get drivers to passengers as quickly as possible.

It therefore concluded that any Uber driver who had the Uber app switched on, was within the territory in which they were authorised to work (in this case, London) and was able and willing to accept assignments, was working for Uber London Ltd under a “worker” contract. As they were workers they were therefore engaged on working time for the purposes of the WTR and entitled to be paid the national minimum wage.

Uber appealed, arguing that the tribunal had failed to take into account the written documentation which it said made clear that the drivers provided the transportation services and so were self-employed while Uber, in common with other private hire companies, was merely acting as an agent for the drivers.

EAT decision

In line with the decision of the Supreme Court in Autoclenz Ltd v Belcher and ors, the EAT held that the tribunal was right to look behind the label of self-employed driver given to the drivers by Uber in its written documentation and consider the reality of the situation. In this case, the drivers were, in reality, incorporated into the Uber business of providing transportation services, although the relationship was presented in the written documentation as one of agency.

The tribunal had correctly concluded that Uber drivers were required to accept trips offered by Uber, London and could not cancel them once they had done so. In addition, once they had come on duty, not only did the drivers have to be in the relevant territory with the app switched on, but also had to be able and willing to accept a high percentage of assignments. Although there were gaps between assignments, that was not fatal to their claims as workers.

The EAT therefore dismissed the appeal.