As you may have seen from the extensive press coverage, the UK Employment Tribunal has delivered its much anticipated judgment in Aslam and Farrar v Uber. The case was about whether Uber drivers are self-employed contractors, or are “workers” with rights to minimum wage, statutory holidays, sick pay and breaks, amongst other workers’ rights.
In Depth
A “worker” is someone who has entered into a contract to personally do work for, or provide services to, a third party. This contract can be implied and does not have to be in writing. If that third party is a customer of the individual’s business undertaking, however, then that individual is self-employed.
Determining the status of the relationship between businesses and those they engage involves the Employment Tribunal looking beyond the terms and conditions in place between the parties to the reality of the relationship. The Tribunal will look at a number of factors to determine the true status of the relationship, but what really matters is the Tribunal’s view of how much control the business exerts over the individual, and whether or not that tips the balance away from the individual truly having the autonomy of being self-employed.
Uber’s Position
Uber said that it did not have the necessary control over drivers because
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It is just a “platform” (through the Uber app) that links fare-paying customers to Uber drivers, rather than a transportation business.
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Once linked, the Uber driver uses his/her own vehicle to take the customer to the requested destination.
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There is no obligation on the drivers to work and drivers are not performance managed or subject to disciplinary procedures, although they do receive a “rating” from customers at the end of the journey.
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Uber does not “pay” the drivers. The drivers receive the fare paid by the customer (collected by Uber through the platform), after the deduction of Uber’s service fee. The service fee to Uber is taken as payment for the use of the app.
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The drivers pay for the vehicle, the expenses associated with running that vehicle and their own taxi licenses.
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It is the end-user (Uber’s customers) who contract with the drivers; they engage the drivers as self-employed contractors.
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The drivers accept their self-employed status for tax purposes.
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The drivers are permitted to work for other organisations, including direct competitors of Uber; they are not required to work exclusively for Uber.
The Employment Tribunal’s Decision
The Tribunal was not persuaded by Uber’s arguments nor, in relation to some aspects, Uber’s perspective on how its business operated. The Tribunal found that Uber was, indeed, running a transportation business through which the drivers provided skilled labour, from which Uber profited. The key factors were
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That the drivers can only use the Uber app on Uber’s terms.
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Uber interviews and “recruits” the drivers.
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Uber handles customer complaints and often compensates customers following these complaints. Uber’s findings in respect of customer complaints are not always shared with the driver.
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Uber accepts liability for losses, e.g., refunds to passengers, which would usually fall to a driver who was genuinely self-employed.
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Uber does pay the drivers.
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Uber’s ratings system (whereby the customer would rate the driver following the completion of a journey), is essentially a performance management procedure that could result in the driver being disconnected from the app.
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Fares are fixed by Uber.
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The language used by Uber in its PR communications is inconsistent with their argument that the drivers are self-employed.
What’s Next?
Uber has confirmed to customers and the press that it will be appealing the decision. In order to get an appeal off the ground, however, Uber will need to identify an error of law in the Tribunal’s judgment, or show that it had reached a decision which no reasonable tribunal could have reached on the facts.
How Does This Affect My Business
The analysis of an individual’s employment status will depend on the facts of each individual case. The Uber judgment therefore does not necessarily mean that all companies within the gig economy, or who engage self-employed contractors, must now give these individuals workers’ rights.
It does, however, serve as a useful reminder to review your workforce, consultancy/contractor agreements and other documents/communications and processes. Keep in mind, however, that were there to be a dispute over the status of the working relationship, a tribunal or HMRC would look beyond the contractual documents to the true relationship of the parties.
© 2016 McDermott Will & Emery
