Uber BV v Aslam

Uber BV and others v Aslam [2021] UKSC 5

Facts

This case, Uber BV and others v Aslam and others, was an appeal to the UK Supreme Court regarding the employment status of drivers working through the Uber app. The central question was whether these drivers should be classified as "workers" and thus entitled to rights such as the national minimum wage and paid annual leave, or as independent contractors without those rights.

Here is a breakdown of the key aspects of the case:

Parties Involved

The appellants were Uber BV (a Dutch company owning the app) and its UK subsidiaries, Uber London Ltd and Uber Britannia Ltd. The respondents were a group of drivers, including two test claimants, Yaseen Aslam and James Farrar, who argued that they were "workers" for Uber.

Uber's Business Model

Uber provides a smartphone app that connects passengers with drivers. Passengers book rides through the app, which identifies the nearest available driver. The app also handles fare calculation and payment. Uber takes a service fee from the fare, and the rest is paid to the driver.

Driver Onboarding

To become a driver, individuals must sign up online, attend an in-person meeting with Uber, and present certain documents. Drivers must provide their own vehicles and pay for all associated costs. They can choose their own hours, but must adhere to certain standards of performance set by Uber.

Performance Standards

Uber monitors drivers' performance via metrics such as acceptance rate, cancellation rate, and passenger ratings. Drivers who do not meet these standards receive warnings, and may be logged off the app for periods of time. Uber also has a "driver offence process" to deal with misconduct.

Written Agreements

Drivers are required to agree to "Partner Terms" and later a "Services Agreement" with Uber BV, which characterise the drivers as independent contractors using the Uber app to connect with passengers. The agreements state that Uber is a technology provider and payment collection agent, not a transportation service. Uber also has "Rider Terms" that passengers must accept, stating that Uber acts as an agent for the driver, who is the "Transportation Provider".

Licensing Regime

Uber London is a licensed private hire vehicle (PHV) operator in London. The relevant legislation requires that anyone accepting private hire bookings must have a PHV operator's license. Uber London, as a license holder, has an obligation to ensure the vehicles and drivers used have the required licenses. The operator must also agree the fare or provide an accurate fare estimate.

Statutory Rights of Workers

The drivers claimed rights under the National Minimum Wage Act 1998, the Working Time Regulations 1998, and the Employment Rights Act 1996. These laws provide rights to "workers" who are defined as individuals working under a contract to perform services personally, and who are not a client or customer of the party for whom they are performing services. The definition of "worker" includes both employees and those who are self-employed but are performing work as part of someone else's business.

The Main Issue of the Case

The critical question was whether the drivers were performing services for Uber under a "worker's contract," or whether they were providing services directly to passengers, with Uber acting only as a booking agent. Uber argued that the written agreements established that they were not party to the contract between the driver and the passenger.

Held

The Supreme Court rejected Uber's argument that the written agreements should be the starting point for determining worker status. The court referred to the Autoclenz case, stating that employment tribunals must focus on the reality of the relationship rather than solely relying on written documentation. The Court argued that the purpose of employment legislation is to protect vulnerable workers and should not be determined by the terms of the written agreement because that agreement is often dictated by the employer. The court emphasized the importance of assessing the level of control exercised by the employer and the dependency of the worker.

Uber London as Principal

The Court found that Uber London acted as a principal in accepting bookings from passengers, not as an agent for the drivers. The court determined that because only Uber London held a PHV operator's license, it had to contract with passengers to provide transport services. Because Uber London did not contract with drivers as agents for passengers, the court reasoned that Uber London must have contracted directly with drivers for them to carry out bookings. The Court noted that Uber's business could not function if Uber London were not contracting with drivers.

Control and Dependence

The Court emphasized the degree of control exerted by Uber over drivers, including the setting of fares, the terms of service, and performance monitoring via ratings and acceptance rates. The court stated that Uber controls the service and how it is delivered to passengers. The court noted that Uber restricts communication between drivers and passengers, preventing drivers from building their own independent business and establishing their own customer loyalty. These factors indicated a relationship of subordination and dependence, typical of a "worker".

Working Time

The Court determined that drivers were "working" for Uber not just when they were transporting passengers, but also when they were logged into the app, within their licensed area, and ready to accept trips. The Court stated that by logging into the app, drivers were effectively “on duty”, undertaking an obligation to accept work, subject to the penalty of being logged off the app if they declined too many trips. The court also found that working time included any time drivers were available for work and at Uber's disposal.

Outcome

The Supreme Court dismissed Uber's appeal, affirming that the drivers were "workers" entitled to the protections of employment law. The Court emphasised that the findings of the Employment Tribunal were reasonable given the facts of the case.

Comment

In conclusion, this case clarified the interpretation of "worker" status in the context of the gig economy. The court prioritized the practical reality of the working relationship over the written contracts in determining that Uber drivers were "workers" and therefore entitled to statutory protections. The judgment emphasized the importance of control and dependence in determining employment status.