Uber has lost its appeal against the finding that Uber drivers are workers rather than self-employed.

In Uber BV v Aslam & Ors (Jurisdictional Points – worker, employee or neither: Working Time Regulations) [2017] UKEAT 0056/17/1011, the claimants were current or former Uber drivers in the London area (of whom there are about 30,000). Along with others, they had brought various claims in the Employment Tribunal (ET) that they were ‘workers’ for the purposes of s.230(3)(b) Employment Rights Act 1996 (ERA), regulation 36(1) Working Time Regulations 1998 (WTR) and s.54(3) National Minimum Wage Act 1998 (NMWA). The ET had concluded (in [2016] EW Misc B68 (ET)) that any Uber driver in London who had the Uber app switched on, who was within the territory in which drivers were authorised to work and who was able and willing to accept assignments, was working for Uber London Ltd (ULL) under a ‘worker’ contract and, further, was then engaged on ‘working time’ for the purposes of regulation 2(1) WTR.

Uber appealed, arguing:

• that the ET had erred in law when it disregarded the written contractual documentation: there was no contract between the claimants and Uber, and the written agreements between the drivers and Uber BV and riders were inconsistent with the existence of any worker relationship
• under them, Uber drivers provided transport services to riders, while Uber itself provided its services to the drivers as their agent and, in finding otherwise, the ET had disregarded the basic principles of agency law
• that the ET had further erred in relying on regulatory requirements as evidence of worker status;
• that the ET had made a number of internally inconsistent and perverse findings of fact in concluding that the claimants were required to work for Uber
• that it had failed to take into account relevant matters that Uber claimed were inconsistent with worker status and strongly indicated that the claimants were carrying on individual business undertakings on their own account.

HHJ Eady dismissed Uber’s appeal, coming to the following conclusions:

• It was key to Uber’s argument that the ET erred in disregarding the written contracts, which recorded the parties’ agreed characterisation of the relationship between ULL and the drivers as one of agent/principal and, to the extent that the ET considered those terms to be one-sided, that did not entitle the ET to disregard the written contract [104].
• The ET had been required to determine the nature of the relationship between ULL and the drivers for the purposes of statutory provisions in employment law that had been enacted to provide protections to those often disadvantaged in any contractual bargain. The ET’s starting point had been to determine the true nature of the parties’ bargain, having regard to allthe circumstances. That was consistent with the approach laid down by the UK Supreme Court in Autoclenz Ltd v Belcher and Ors [2011] ICR 1157 and was particularly apposite, given there was no direct written contract between the drivers and ULL. Adopting that approach, the ET had not accepted that the written agreements between drivers and ULL properly reflected the reality. In particular – and crucial to its reasoning – the ET had rejected the contention that Uber drivers worked in individual businesses on their own account and every time they accept a trip entered into in a contractual relationship with the passenger [105].
• The ET had concluded that the contention that the 30,000 individual drivers might still (regardless of numbers) be operating as businesses on their own account did not reflect the reality: the drivers could not grow their “businesses”, they had no ability to negotiate terms with passengers (other than to agree a fare reduction) and had to accept work on Uber’s terms [107].
• Uber’s contention that the ET’s starting point should have been the characterisation of the relationship between ULL and the drivers as set out in the documentation was incorrect. The ET was not bound by the label used by the parties; it was concerned to discover the true nature of the relationships involved and was entitled to reject the label of “agency” and the characterisation of the relationship in the written documentation [109].
• The ET had been entitled to look at all the factors to determine whether or not the claimants, as Uber drivers, were entering into contracts with passengers as part of their own business undertakings and to conclude that the fact that the drivers were subject to control by ULL was an indication that they were not [111].
• Uber’s argument that crucial findings by the ET were simply inconsistent or perverse was flawed [114]. An ET was entitled to expect its Judgment to be read as a whole and, adopting a ‘whole Judgment’ approach to the reasoning, she did not see its findings as inconsistent [115].
• The ET had been entitled to conclude there was a contract between ULL and the drivers whereby the drivers personally undertook work for ULL as part of its business of providing transportation services to passengers in the London area [116].
• As to the issue of “working time”, on the ET’s findings of fact, it was not wrong to hold that a driver would be a worker engaged on working time when in the territory, with the app switched on, and ready and willing to accept trips (“on-duty“, to use Uber’s short-hand) [126].

Comment

As HHJ Eady observed, the Employment Tribunal’s original conclusion was entirely consonant with the ‘purposive approach’ taken by the UKSC in Autoclenz: looking behind the documentation and examining the factual situation. That said, however, we would imagine that her judgment will be appealed, and there is presumably a possibility that it will go directly to the UKSC by the ‘leapfrog’ procedure.

We are grateful to Frank Cranmer for producing this case note.