If you have been attending our Employment Law Updates over the last couple of years, you will have heard Paul Menham, our Employment Lawyer, briefly discuss how this case has been working its way up to the Supreme Court. The case has been heard and a decision finally made, so we wanted to provide an update for you. Paul has kindly put together a summary of the outcome and what this means for employers.
The Supreme Court has confirmed that Uber drivers are “workers” in Uber BV and others v Aslam and others [2021] UKSC 5. This means that Uber drivers are entitled to the National Minimum Wage Act 1998 and to the protection of the Working Time Regulations (entitlement to paid holidays and rest breaks).
This has been a long running saga that Uber have lost at every hearing from the Tribunal all the way through to the Supreme Court.
Previously, courts have used the contractual documentation between the parties as a starting point. Uber’s lengthy and complicated terms and conditions, which drivers had to accept, described the relationship as a commercial contract.
The Supreme Court said in its decision that worker status was a question of statutory interpretation, rather than contractual interpretation. Therefore, the written contract was not the appropriate starting point. Rather – the courts have to consider the purpose of the legislation. The National Minimum Wage Act and the Working Time Regulations were designed to protect vulnerable individuals in a position of subordination and dependence, in relation to a business which controls their work.
Considering that position – the Supreme Court confirmed that the original Tribunal had been entitled to find that the drivers were workers of Uber. They emphasised five key reasons for this:
- Uber specified the fare charged by the drivers – which determined the drivers’ pay;
- Uber dictated the contractual terms on a take it or leave it basis;
- Uber restricted the ability to accept or decline passengers;
- Uber exercised a high degree of control regarding how drivers provided their services;
- Uber restricted the communication between the driver and the passenger.
Overall – the service provided by the drivers was highly controlled by Uber. As such, drivers were limited in their ability to profit from their work (the only way they could increase profit was to work more hours).
The Supreme Court therefore agreed with the Tribunal’s determination that the drivers were workers.
Of potentially greater concern to Uber was the Supreme Court upholding the Tribunal’s decision that “working time” (and therefore entitlement to the National Minimum Wage) included periods when the driver was logged into Uber’s app in the territory where they were licenced to work and ready and willing to accept passengers. This means that drivers sat idle will be entitled to the National Minimum Wage (rather than just when they are driving – as has been Uber’s practice).
This decision should not have come as a huge surprise. For schools, the repercussions are unlikely to be felt widely. For our business clients, it will impact more on the “gig-economy” where individuals working for one organisation are (sometimes incorrectly) categorised as not being “workers”. It is also important to bear in mind that this decision did not deal with “employee” status (which brings with it protection from unfair dismissal, maternity rights, minimum periods of notice, SSP and other benefits) only the wider category of “worker” (with more limited protections).
If you have any queries regarding your employment contracts, status of your workers or individuals you engage with, please do not hesitate to contact us.
