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Uber’s drivers are ‘workers’

Print publication

19/02/2021

Employment status cases back in the spotlight

The Supreme Court has today handed down its much-anticipated judgment on the status of Uber’s drivers, unanimously affirming the findings of the tribunals and the Court of Appeal; Uber’s drivers are ‘workers’ and are ‘working’ whenever they are: (a) on the Uber app; (b) within the territory in which they are authorised to work; and (c) are able and willing to accept jobs on the app.

Uber contended that its drivers are independent, third-party contractors – that Uber is simply the booking agent between its drivers and riders, and this position is stated in its standard contract terms, which its drivers and riders must accept in order to use the Uber app.

The Supreme Court found five aspects of the Employment Appeal Tribunal’s judgment particularly persuasive, namely:

  • when a ride is booked, Uber dictates the price of the trip and therefore a driver’s earnings for each trip;
  • Uber’s standard contract terms are rigid and must be accepted by drivers and riders to use the app – the relevant legislation looks beyond the form of such contractual relationships to their substance, to protect individuals in positions of subordination, like Uber’s drivers;
  • drivers do not have true freedom to accept and reject rides as they please – drivers who reject too many rides are penalised with various soft-control techniques, such as temporary app time-outs, restricting a driver’s ability to seek rides;
  • Uber exerts considerable control over the how its drivers deliver their services through its policies on its treatment of drivers with low customer-rating averages; and
  • Uber takes active steps to limit the scope for its drivers and riders to communicate and form any sort of relationship.

For the drivers in question, the judgment means that they are (and should have previously been) entitled to certain statutory rights by virtue of their ‘worker’ status, such as the national living/minimum wage and paid holidays.

It is yet another case to add to previous judgments on worker status and the ‘gig economy’ in particular. Ultimately, the employment/worker status of an individual is a question of fact and the judgment is therefore fact-specific. However, the judgment provides guidance on the appropriate approach to assessing employment/worker status, arguably indicates a trend towards greater employment rights and brings the ongoing debate over employment status back into the spotlight.

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