Uber drivers, workers rights and what it means for you

The gig economy has seen people engaged in new and different ways. Whether someone is engaged as an employee or a worker determines the rights they…

The gig economy has seen an increasing number of people engaged in new and different ways. Whether someone is engaged as an employee or a worker determines the rights they have and many more recent employment-related rights have been given to the broader category of workers rather than just traditional employees. Last week's important Tribunal Judgment in the case of Aslam v Uber, considered the status of Uber drivers. It has the potential to have significant ramifications for many organisations endeavouring to engage operatives in new ways.

The facts

Many of you will be familiar with the way in which Uber operate. What is notable about this Judgment is the detailed way in which the Judge breaks down the way in which the relationship is documented and (more importantly) operates in practice. However the key basis for the disagreement is that Uber say that it is the passengers who contract with the drivers and that they do not control when and how the drivers work, accordingly the drivers don't work for them and don't have worker rights. The drivers contended that in practice they are workers undertaking personally to do work for the organisation (without Uber being a client or customer of their business). They sought annual leave and pay, based upon worker status.

In determining that the drivers are workers, the Tribunal expressly say that it could be possible for an organisation to operate in the way that Uber contends so that drivers are not workers. However when it analysed the detail of Uber's operation, statements and systems, these drivers were workers. The fact that the driver doesn't know the passenger's identity, picks them up to take them to an initially unknown destination, and receives payment at a fee calculated by and paid to Uber, all show that there is no genuine contract between the driver and the passenger. The Tribunal was unimpressed with the lengths Uber went to in documents to suggest there was no working engagement and that they gave drivers business opportunities, when in simple terms Uber runs a transportation business and the drivers work for them.

As with all such arrangements Uber clearly had a problem retaining quality control whilst maintaining those steps did not mean that drivers worked for them. They have a number of systems in place to ensure drivers accept and don't cancel bookings, and provide a good service to customers. Using the terminology of rider experience, preserving the integrity of the platform, log-off penalties and deactivation, did not impress this Tribunal and accordingly in its view did not stop these controls being indicative that the drivers were Uber's workers (particularly when the bargaining power of Uber and the drivers was taken into account).                 

The Tribunal was also asked to decide when the working relationship was in place with the drivers. It held that when the drivers were in the territory for which they are licensed, ready and willing to accept jobs, with the app by which they do so switched on, they were workers. However they were not workers when the app is off or when they are travelling from home to their territory (if they live outside their patch). This detail may be important when future hearings need to establish whether minimum/living wage has been paid (and the breaks to which they are entitled).

What does this mean for me?

Clever use of terminology and good documents can help to define the ways you engage workers, but they will not be definitive. This Judgment is a warning to all who engage people as contractors on the assumption that they will have no worker rights. A Tribunal will take a careful look at the reality of the entire relationship when determining if the person engaged is really a worker (or indeed an employee). As the modern world of working relationships evolves there may be ways of operating which do not involve those who provide the service being your workers or employees. However be careful because if someone is your worker and has not been considered as such, they may have claims for annual leave, minimum/living wage, detriment for whistleblowing or even pension contributions (which you haven't taken into account). 

With the recent statement that there is a new HMRC task force looking at this and the publicity around this case, it is important to ensure that you correctly categorise those who work for or with you, to avoid expensive risks.  We are happy to help.

Comment 

This is only an Employment Tribunal judgment. However it was a case argued by leading barristers for an organisation and Union at the forefront of the worker-status argument. There will almost inevitably be an appeal, given what is at stake and as Uber have said they will do so, and so this is a long way from being the end of the story. This Judgment is not only likely to have serious ramifications for Uber, but for many organisations who operate in the so called gig economy. If you engage people in similar ways, you may be the next organisation to face claims from those providing service alongside you (possibly backed by the unions). Do make sure you know what your position is and why your operation differs from Uber's.

If this raises any issues for your organisation please speak to your usual contact in the Weightmans employment pensions and immigration team, Phil Allen (Phil.allen@weightmans.com) or Lee Rogers (lee.rogers@weightmans.com).

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