The issue
In July 2016, a London employment tribunal was asked to decide if the claimants who were or had been drivers for Uber were 'workers' for the purposes of employment legislation.
Uber's defence against the claims was that it operated as a technology platform (as opposed to a transportation provider) which simply facilitated taxi rides by allowing self-employed drivers to offer their services to passengers via the Uber App.
However, finding for the claimants, the tribunal took a different view namely that when his Uber App was switched on, a driver who was able and willing to accept assignments, was working for Uber for as long as those conditions were met.
The tribunal went on to say that the case put forward by Uber did not correspond with reality and that the notion that Uber, in London, was a 'mosaic' of 30,000 small businesses linked by a common platform was not plausible.
In terms of the relationship between the drivers and Uber, the tribunal identified a number of components in their relationship with Uber which they thought to be significant indicators that the drivers were 'workers', including that:
- Uber interviews and recruits drivers
- it controls key information as to the passenger’s identity and destination which is not shared with the driver
- it requires drivers to accept trips (with consequences for those in breach)
- it imposes conditions on drivers, instructing them on how to do their work
- it fixes the fares
- it controls the drivers in the performance of their duties.
What does this decision mean for your organisation?
The employment tribunal was somewhat scathing of the approach Uber had taken when choosing how to document its contractual relationship with its drivers finding that it had resorted to "fictions", and "twisted language".
However, what is interesting is that the tribunal did acknowledge that it would have been possible for Uber to have deployed a business model which would not involve them engaging drivers as workers – it was simply that the model they had chosen had failed to achieve this.
This means that other organisations which work on a similar basis may not necessarily face the same problems as Uber and a closer analysis of the tribunal decision may help to identify potential areas of risk to address.
This decision is only a first instance decision of the employment tribunal, so is not directly binding on other tribunals, nor is it binding on businesses (other than Uber which has announced its intention to appeal the decision).
It is also worth noting that the Business Energy and Industrial Strategy Committee (appointed by the House of Commons) has launched an inquiry into the future world of work, focusing on the rapidly changing nature of work activities and rights of agency workers, the self-employed and those working in what is commonly referred to as the 'gig economy'. It is, therefore, likely that employment status will come under parliamentary scrutiny in due course and that new legislation may well follow. Any changes would almost certainly go beyond the so-called ‘gig economy’ and so businesses with business models which rely on self-employed contractors (even where that is in addition to workers and employees) and particularly where there is some exercise of control over branding, marketing, or access to customers, may wish to seek advice on the contractual arrangements they have in place with these individuals.
Aslam and Farrar & Others v Uber B.V. and others Case Nos – 2202550/2015