In the recent appeal brought by Uber in Uber v Aslam, the Supreme Court ruled that the driver’s true employment status was that of workers. What does this mean for Uber and the Uber drivers?
The landmark judgment means that the successful claimants are entitled to some important rights that they were previously denied when they were labelled and regarded by Uber as being self-employed.
For years, the drivers for Uber were deprived of important rights that would have allowed them to be in receipt of holiday pay, National Minimum Wage, National Living Wage, pension rights and more. Companies that commonly apply the label self-employed often use this mechanism as way of reducing their liability; as not only do they avoid paying holiday pay and pension contributions they also avoid the tax liability, as they pass this on to the worker.
For workers in the gig economy, who can demonstrate that their employer exercises sufficient control, this is great news. Workers can also expect to receive a statement of particulars, they are entitled to receive an itemised pay statement. They are protected from being treated less favourably on the grounds that they are part-time. They are protected from unlawful deductions from wages, claims can also be brought under the Equality Act 2010, should they suffer a detriment. Other claims they can raise are whistle-blowing, working time claims, protection from inducement and detriment for trade union membership and they now enjoy the right to be accompanied at disciplinary and grievance hearings.
The judgment emphasises five aspects of the findings made by the employment tribunal which justified its conclusion that the claimants were working for and under contracts with Uber: –
- First, where a ride is booked through the Uber app, it is Uber that sets the fare and drivers are not permitted to charge more than the fare calculated by the Uber app. It is therefore Uber which dictates how much drivers are paid for the work they do.
- Second, the contract terms on which drivers perform their services are imposed by Uber and drivers have no say in them.
- Third, once a driver has logged onto the Uber app, the driver’s choice about whether to accept requests for rides is constrained by Uber. One way in which this is done is by monitoring the driver’s rate of acceptance (and cancellation) of trip requests and imposing what amounts to a penalty if too many trip requests are declined or cancelled by automatically logging the driver off the Uber app for ten minutes, thereby preventing the driver from working until allowed to log back on.
- Fourth, Uber also exercises significant control over the way in which drivers deliver their services. One of several methods mentioned in the judgment is the use of a ratings system whereby passengers are asked to rate the driver on a scale of 1 to 5 after each trip. Any driver who fails to maintain a required average rating will receive a series of warnings and, if their average rating does not improve, eventually have their relationship with Uber terminated.
- A fifth significant factor is that 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 judgement also recognised that the drivers were not confined to the hours they were driving, but when they were logged into the Uber app, which raises rights relating to working time regulations and pay for time spent logged into the Uber app but not necessarily driving passengers.
Ultimately, the reason why Uber lost their case was down to the fact that they have the upper hand and they are predominantly in control of the drivers. As stated in the judgement summary, ‘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’
If you think that you have been labelled unreasonably as self-employed and are not permitted to substitute your personal services, it’s possible that you are a worker. For more information on your employment status, speak to Sarah Waddington Solicitors.