Uber v Aslam & others [2021] UKSC 5

Posted In: Case Law
  • Decision Number
    UKSC 5
  • Legal Body
    Uk Supreme Court (UKSC)
  • Type of Claim / Jurisdiction
    Contracts of Employment, Working Time, Flexible Working, Pay
Issues covered: Working Time Regulations 1998; National Minimum Wage Regulations 1999; Employment Status; Workers; App

This long-running case is relevant to many workers in the gig economy and not just taxi drivers.

The proceedings which gave rise to the appeals were brought by Uber drivers against companies in the Uber group claiming holiday pay under the Working Time Regulations 1998 and under-payments of “wages” by reference to the National Minimum Wage Regulations 1999. 

One of the claimants also claimed that he had been subjected to a detriment for being a whistleblower contrary to Part V of the Employment Rights Act 1996 in GB. The appeal was concerned only with Uber drivers in London but, as with many gig economy cases, it has ramifications for many potentially miscategorised workers, denied holiday pay and other employment rights because they are labelled self-employed contractors. There are, of course, other benefits to being self-employed and not all drivers wanted to see a change to their self-employed status.

Uber argued it acts only as an intermediary, providing booking and payment services, and the drivers drive the passengers as independent contractors. The majority of the Court of Appeal held that the terms do not reflect the practical reality of the relationships and can therefore be disregarded in accordance with the principle established in an earlier Supreme Court decision called Autoclenz Ltd v Belcher [2011] UKSC 41.

The dissenting member of the Court of Appeal, Lord Justice Underhill, felt that the contracts between Uber and the drivers reflected reality in the taxi business and, therefore, Autoclenz should not be applied: 

"...it still seems to me that the relationship argued for by Uber is neither unrealistic nor artificial. On the contrary, it is in accordance with a well-recognised model for relationships in the private hire car business... That being so, Autoclenz gives no warrant for disregarding the terms of the Agreement. Autoclenz is an important tool in tribunals’ armoury because it enables them to look to the reality of a relationship rather than a false characterisation imposed by the employer. But the premise is that the characterisation is indeed false... Autoclenz does not permit the re-writing of agreements only because they are disadvantageous." 

Having lost their case at the Court of Appeal, Uber took their case to the Supreme Court and that court handed down its decision today. 

The Supreme Court unanimously dismissed Uber’s appeal. It found that Uber drivers must be categorised as workers, bringing with it the right to worker rights, such as those under equality laws, working time and national minimum wage. Given the business model, based on an app through which individuals could select times they are available to work is commonly applied in gig economy businesses, such as Deliveroo and Hermes, the case will have ramifications for many beyond the tens of thousands who currently work for Uber in the UK. 

Uber argued that Uber BV acted solely as a technology provider with its subsidiary (Uber London in this case) acting as a booking agent for drivers who are approved by Uber London to use the Uber app. Uber argued that, when a ride is booked through the Uber app, a contract is thereby made directly between the driver and the passenger, whereby the driver agrees to provide transportation services to the passenger. Uber argued that drivers are independent contractors who work under contracts made with customers and do not work for Uber. 

The Supreme Court disagreed. As on the facts there was no written contract between the drivers and Uber London, the nature of their legal relationship had to be inferred from the parties’ conduct and there was no factual basis for asserting that Uber London acted as an agent for drivers. The correct inference was that Uber London contracts with passengers and engages drivers to carry out bookings for it.

Taking a number of factors together (such as: it is Uber that sets the fare and drivers are not permitted to charge more than the fare calculated by the Uber app; the contract terms on which drivers perform their services are imposed by Uber and drivers have no say in them; 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 transportation service performed by drivers and offered to passengers through the Uber app is very tightly defined and controlled by Uber. Drivers are in a position of subordination and dependency in relation to Uber such that they have little or no ability to improve their economic position through professional or entrepreneurial skill. In practice the only way in which they can increase their earnings is by working longer hours while constantly meeting Uber’s measures of performance. 

Interestingly from a waiting time/on-call point of view that might have implications for many employers outside the gig economy, the Supreme Court also held that the employment tribunal was entitled to find that time spent by the claimants working for Uber was not limited (as Uber argued) to periods when they were actually driving passengers to their destinations, but included any period when the driver was logged into the Uber app within the territory in which the driver was licensed to operate and was ready and willing to accept trips.

A review of the:

Court of Appeal Decision is available here.
Employment Appeal Tribunal Decision is available here.
Employment Tribunal Decision is available here

This article is correct at 19/02/2021

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

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