After Friday’s breaking news, we have this week had the opportunity to read the full judgment of the Mr Y Aslam, Mr J Farrar and Others v Uber.
Despite Uber’s overly frequent and vehement attempts to convince the judge in their favour, the Employment Tribunal decided, the Uber drivers are ‘workers’ within the meaning of the Employment Rights Act 1996 (the Act).
Section 230 of the Act defines a worker as
“an individual who has entered into or works under…
(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;
and any reference to a worker’s contract shall be construed accordingly.”
The tribunal found that the case put forward by Uber did not correspond with the practical reality. Uber exercises a high level of control over its drivers which means they cannot be called self-employed. For example:
Uber interviews, recruits, instructs, controls, disciplines and where it sees fit, dismisses the drivers.
Although Uber claims it merely provides drivers with leads in order to assist self-employed drivers grow their business. The tribunal said the drivers have no opportunity to grow their business considering at no point is the driver permitted to negotiate with the passenger. The drivers enter into a binding contract with passengers at Uber’s terms. The drivers pick up passengers whose identity is unknown, to undertake a journey to a destination not told to the driver until the journey begins- by a route prescribed by a stranger to the contract (Uber B.V.) from which the driver cannot depart, for a fee which is not set by the drivers and is paid directly to Uber.
Uber instructs drivers on how to do their work and controlling them in the performance of their duties.
Uber markets its product range, evidently to promote Uber’s name and ‘sell’ its transportation services not drivers; a solo driver cannot offer such a range.
Uber requires drivers to accept and/or not to cancel trips and enforces this requirement by logging off drivers who breach it.
The drivers are rated by the passengers using 1-5 ‘stars’, and accordingly Uber removes low performing drivers. This is identical to an employer-employee relationship.
Uber handles passenger complaints.
Uber reserves the right to unilaterally amend drivers’ terms.
Uber does not simply sell software; it sells rides. The tribunal stated that its reasoning should not be taken as doubting Uber; but simply that Uber’s chosen model failed to achieve their aim. The drivers do not market themselves, they are recruited by Uber to work as integral components of its organisation. The drivers provide the skilled labour through which the organisation delivers its services and earns its profits.
Thus, any driver who has the app switched on, is within the territory in which he or she is authorised to work, and is able and willing to accept assignments is – for so long as those conditions are satisfied – working for Uber under a worker contract.
Uber has confirmed that it will be seeking to appeal the decision. But if this decision stands, the drivers will be entitled to rights available to worker. So what does this mean? They will be entitled to the following rights:
5.6 weeks’ paid annual leave each year
a maximum 48-hour average working week, and rest breaks
the national minimum wage (and the national living wage)
protection of the whistleblowing legislation.
As they are not employees, they will not be entitled to:
the ability to claim unfair dismissal
the right to a statutory redundancy payment
the benefit of the implied term of trust and confidence
the protection of TUPE, if Uber sells its business
Although the decision is fact-specific, and is based on Uber’s business model, workers in ‘gig economy’ could use this landmark ruling to challenge their status and claim they are workers or employees. Therefore, if you are a so-called self-employed individual with terms restricting your activities, or if you are an employer running a similar business model and are unsure as to the implications then call us now to book in a free consultation on 0330 221 0684
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