A better 'gig' for Uber drivers
Uber drivers are currently treated as self-employed, meaning that in law they are only afforded minimal protections despite having won their case* against Uber in 2016 to be defined and treated as workers.
Since then, Uber has dragged the case through the Employment Appeals Tribunal, The Court of Appeal and most recently The Supreme Court who on Friday gave the Uber drivers the ultimate seal of approval by upholding the original decision that Uber must now classify it’s drivers on its platform as workers.
Yaseen Aslam, one of the original claimants in the case, said he was "overjoyed and greatly relieved" by the decision.
Responding to the court's ruling, Uber's regional general manager for Northern and Eastern Europe said the company is "committed to doing more" and will now consult with drivers in the UK
This judgment means that self-employed people working for Uber would have the same rights as workers for the first time. These include:
- the right to be paid national minimum wage,
- to be given the statutory minimum level of paid holiday
- and rest breaks,
- to be protected from unlawful discrimination and whistleblowing in the workplace,
- and not to be treated less favourably if they work part time.
- They may also be entitled to maternity and paternity pay and statutory sick pay.
This judgment does not give them ‘employee’ rights, such as the right to a redundancy payment or to claim unfair dismissal.
In their judgment on Friday, Supreme Court judges said they made their decision based on five key points:
- Uber sets the fare price and drivers are not permitted to charge more than the fare calculated by the Uber app. Judges determined that therefore, Uber dictates how much drivers are paid for the work they do.
- Uber imposes contracts and terms of service and drivers have no say in them.
- Once a driver has logged onto the Uber app, their choice is constrained by Uber by monitoring their acceptance rate and imposing "penalties" if too many trips are declined.
- They found that Uber also exercises "significant control" over the way in which drivers deliver their services, using a passenger ratings system that impacts whether the driver can continue working for Uber.
- They determined that Uber restricts communications between passenger and driver to the minimum necessary to perform the particular trip and takes active steps to prevent drivers from establishing any relationship with a passenger capable of extending beyond an individual ride.
The Employment Tribunal decided that the claimants were workers, and that their working hours started when they had the app switched on and they were ready to accept trips. In practice, this would mean that Uber would have to pay drivers for the hours they worked, regardless of the demand on the platform. The Tribunal said that while the app was turned off, there was no contractual obligation on either side, but when the app was on, they would fit the definition of “worker”.
What happens next?
An employment tribunal will now decide how much compensation to award the 25 drivers in the case, in a process that could take months.
This means that Uber drivers are entitled to:
- claim minimum wage (including backpay for minimum wage), with their minimum wage claims being based upon their entire working day, not just when they had a rider in their cabs.
- Up to two years’ backpay (there is some doubt about this, it could be longer), or £25,000 (whichever is the larger) can be claimed in an employment tribunal, and up to six years’ backpay can be claimed in the county court.
Although the new decision will only directly apply to the 25 drivers who brought the claim against Uber, the floodgates will open for around 1,000 similar claims against Uber. It does not mean that all Uber drivers will automatically be classed as workers, but this is the first step in that direction.
Organisations should review their agreements with their service providers to ensure that they reflect the reality of the situation. Courts and tribunals will look beyond the contractual wording when deciding whether an individual is a worker or self-employed.
This landmark decision undoubtedly sets an important precedent for how millions of gig economy workers are treated in the UK and it will be interesting to see what difference (if any) it makes.
This judgment is fact specific and a different conclusion might be reached in other cases involving individuals in the gig economy, even taxi drivers on a digital platform.
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*The Uber BV v Aslam and others case was first heard in 2016, when the Employment Tribunal ruled in favour of two former Uber drivers, Aslam and James Farrar. They made a claim under regulations including the Employment Rights Act 1996 and the National Minimum Wage Act 1998, alleging that Uber failed to pay the minimum wage and failed to provide paid leave. Uber defended the claim, arguing that the claimants were not “workers”, and therefore were not afforded protection under employment law.
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