Following the decision of the Supreme Court in Uber v Aslam (weekly LELR 717), the Court of Appeal has confirmed in the case of Addison Lee Ltd v Lange and ors that Addison Lee minicab drivers are workers, not independent contractors.
The Court of Appeal considered that, in light of the decision of the Supreme Court in Uber, Addison Lee’s appeal against the findings of the tribunal and the EAT that the minicab drivers were not workers did not have a real prospect of success.
In particular, the Supreme Court in Uber had endorsed the principle in Autoclenz v Belcher (LELR 229) that where the terms of the contract do not represent the reality of the situation those terms should be disregarded. What is key is whether the drivers fall within the statutory definition of a worker.
Section 230(3)(b) of the Employment Rights Act (ERA) states that a worker is an individual who has entered into either:
(a) A contract of employment; or
(b) “Any other contract … whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual". This is known as the limb b) test.
In this case, the three Addison Lee drivers brought claims against the company asserting they were limb (b) workers and therefore entitled to holiday pay under the Working Time Regulations 1998 and the national minimum wage under the National Minimum Wage Act 1998.
The employer relied on a term in the contract to argue that there was no obligation on the drivers to provide their services at any time nor was there any obligation on Addison Lee to provide them with work (mutuality of obligations). The employment tribunal back in 2017 rejected that argument and found that the reality of the situation was that the drivers were contracted to provide work personally when they were logged onto the app.
The tribunal found that the drivers were "limb (b) workers" on two grounds. First, there was an overarching contract between each claimant and Addison Lee. Secondly, each time a driver logged on they were undertaking to accept the driving jobs allocated to them and to perform driving services personally. The EAT (weekly LELR 603) upheld both conclusions, confirming that the tribunal was correct to follow the principle established in the case of Autoclenz.
In upholding the decisions of the tribunal and the EAT the Court of Appeal concluded that: “There is no arguable error in the finding of the ET, upheld by the EAT, that in the present case the claimants were limb (b) workers. Now that the Supreme Court in Uber has reaffirmed the Autoclenz principle, there is no longer a reasonable prospect of success in overturning that finding in the present case and there is no compelling reason why this appeal should proceed further.”
This decision confirms yet another victory for platform workers.
Thompsons will provide a fuller summary of the decision in a future LELR.
You can read the judgment in full here.