by Breda O'Malley February-22-2021 in Employment Law

If it looks like a worker, walks like a worker, and talks like a worker, then it probably is a worker (in the UK anyway!)


Background

The UK Supreme Court handed down a helpful and interesting decision on Friday in the long running case of Uber v Aslam1 which concerned Uber drivers and their employment status for the ride-hailing company.

This case against Uber began in 2016 in the Employment Tribunal with two Uber drivers who argued that they should be considered as workers rather than independent contractors. Uber rejected this argument and contended that the drivers were independent, third-party contractors. The Employment Tribunal, The Employment Appeal Tribunal, and the Court of Appeal found in the driver’s favour, resulting in Uber appealing the decision to the Supreme Court.

In the UK, a worker is a category of its own, somewhere between an employee and a self-employed independent contractor. If an individual is deemed a worker, then they can benefit from certain employment rights in the UK, that independent contractors cannot. These rights include the right to a minimum wage, annual leave entitlements and equality rights. 

An investigation of the relationship between Uber and its drivers was undertaken by the UK courts to determine if the work was being performed by the individuals as employees, workers, or independent contractors. In this landmark decision, the Supreme Court unanimously rejected Uber’s argument that its drivers were independent contractors, and ruled that they were in fact workers, a legal term which is defined in the UK Employment Rights Act.


Key Factors in Supreme Court Decision

In reaching its decision, the Supreme Court placed an emphasis on the following five factors:

  1. The fare for each journey is set by Uber through its app and the drivers are not permitted to charge more than is calculated by the app.
  2. The terms on which the drivers perform their services are dictated by Uber and the drivers have no say in these terms.
  3. Once a driver has logged into the Uber app, the driver’s choice about whether to accept requests for rides is constrained by Uber. Control is exercised by Uber in that the driver is not informed in advance of collecting the passenger of where the passenger is going. Drivers are also controlled by the number of rides they take. Where a driver’s percentage rate of acceptance or cancellation of trips reaches a certain level, they can face certain penalties by Uber which in some instances, prevent them from working.
  4. If a driver fails to maintain a specified average rating, Uber can terminate its relationship with the driver. These ratings are used as an internal tool within Uber to manage the performance of its drivers.
  5. Uber restricts communication between the passenger and the driver and takes active steps to prevent a driver from establishing any form of relationship with its passengers. Drivers are prohibited by Uber from contacting passengers after a trip ends, other than to return lost property.


Summary

In summary, the Supreme court found that Uber exercised such a degree of control over its drivers, that the drivers were not what they were described as in their service agreements with Uber. The terms in the service agreements between Uber and its drivers in this case did not reflect the practical reality of the drivers’ relationship with Uber. The Court found that to treat the terms of a service agreement as the starting point for determining the individual’s status would be inconsistent with employment legislation.

The Court held that the drivers were workers from the moment they switched on the Uber app and were available to work until such time as they switched off the app.

The concept of a worker does not exist in Irish law. As such, there is no comparable definition. This decision raises the question of whether we should incorporate such a definition into Irish employment law, considering this decision will undoubtedly open the floodgates to claims in the UK from those involved in the gig economy. As this is a UK decision, it will not be binding in Irish courts. However, it is sure to be persuasive should a similar claim be brought in Ireland in the future.

For further information on any of the issues above, please contact Breda O'Malley bomalley@hayes-solicitors.ie.

1 [2021] UKSC 5

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About the Author

Breda O'Malley
Breda O'Malley

Breda practises in both Employment and Commercial Law and is Partner and Head of the Employment Law team at Hayes solicitors. Breda has trained and qualified as a mediator with the UK based, internationally renowned Centre for Effective Dispute Resolution (CEDR). Breda practices as a mediator of commercial, employment, boardroom, charity trustee and shareholder disputes.