The Employment Appeal Tribunal has upheld a tribunal’s finding that Uber drivers had worker status for the purposes of the national minimum wage and working time rights.
Uber has a system which allows customers to order a taxi and pay the fare using a smartphone app. It treats the taxi drivers as self employed and its contractual documentation seeks to present itself as a technology platform facilitating the provision of taxi services, not as the provider of the taxi service itself.
The drivers are not required to make any commitment to work but if a driver who is logged into the app doesn’t accept the booking within 10 seconds, it receives warning messages which can lead to the driver’s access to the app being suspended or blocked.
Once a driver accepts a booking, Uber places the driver and passenger in direct contact, but only through the app meaning that the driver does not see the passenger’s contact details. The driver is not made aware of the destination until collecting the passenger. The app provides detailed directions to the destination, which the driver is expected to follow unless the passenger stipulates a different route.
At the end of the trip, Uber calculates a recommended fare, the driver cannot agree a higher fare and the passenger pays the fare direct to Uber via the app. Uber then pays drivers weekly in respect of the fares they have earned, minus a ‘service fee’ of 20% to 25% for the use of the app.
Uber operates a rating system and if a driver falls below a set average rating Uber can withdraw the driver’s access to the app.
Uber takes some risk, for example in some instances of fraud by passengers and deals with any fare complaints.
The drivers supply their own vehicles and are responsible for all running costs, including the cost of private hire licences. Drivers are not required to wear any uniform.
A number of Uber drivers brought claims for unlawful deductions from wages (arguing that Uber had failed to pay the national minimum wage) and for a failure to provide paid leave. They won their claims and Uber appealed.
Drivers had worker status
Dismissing the appeal, the Employment Appeal Tribunal said that the overall question that had to be asked was ‘when the drivers are working, who are they working for?’. It concluded that the tribunal had applied the correct legal principles in answering that question and reached permissible conclusions.
The tribunal was entitled to make findings that the drivers were integrated into Uber’s business and operated under Uber’s control. These included:
- The scale of Uber’s operation. (Not a determinative factor, but a relevant one nonetheless.)
- Drivers could not grow their businesses and could not establish business relationships with passengers (drivers were not provided with passenger details).
- Drivers had no ability to negotiate terms with passengers (beyond being able to agree a lower fare with the passenger, but still faced Uber taking its percentage based on the fare it had set).
- Drivers had to accept Uber’s terms.
As to the question as to when the drivers were working the Employment Appeal Tribunal said that it included the time that the drivers were signed in to the Uber app and waiting for bookings even though in theory they were able to accept bookings from other sources during this time. This resulted from the tribunal’s findings of fact as to the extent to which drivers had to remain available: If a driver failed to accept bookings, the app generated warning messages that could lead to the driver’s access to the app being suspended or blocked. It said that the tribunal had acknowledged that there may be a different set of facts where drivers were genuinely free to accept other work during waiting time but that was not the case here.
Case reference: Uber BV and others v Aslam and others