Uber has lost its appeal against the decision that its drivers are workers, in a fresh blow to the gig economy
The Employment Appeal Tribunal upheld the employment tribunal’s earlier ruling that the drivers are ‘workers’ as defined by the Employment Rights Act 1996, in Uber BV & Ors v Aslam & Ors [2017] UKEAT 0056_17_1011. Uber had argued that it was acting as an agent for the drivers who were independent contractors.
Delivering her judgment, Judge Eady QC, sitting alone, concluded: ‘I do not consider it was wrong to hold that a driver would be a worker engaged on working time when in the territory, with the app switched on, and ready and willing to accept trips ("on-duty", to use Uber's short-hand).
‘If the reality is that Uber's market share in London is such that its drivers are, in practical terms, unable to hold themselves out as available to any other PHV [private hire operator], then, as a matter of fact, they are working at [Uber’s] disposal as part of the pool of drivers it requires to be available within the territory at any one time.’
Peter Finding, partner at Withers, said: ‘In the most significant decision to date on gig economy workers, Uber has lost its appeal against an Employment Tribunal's decision that its drivers can be considered “workers”, and therefore benefit from various employment protections.
‘Given the potential impact of this case on the gig economy as a whole, the decision is expected to be appealed directly to the Supreme Court. The Employment Appeal Tribunal upheld the Tribunal's decision that in reality drivers were an integral part of Uber's taxi business, and were subject to a sufficient degree of control by Uber—these were key factors in the finding that the drivers were “workers” rather than independent contractors running their own businesses.
‘Uber, and other similar businesses, will be prompted to continue to re-evaluate their approaches in order to operate a profitable model without undue levels of risk.’
Imogen Reseigh, senior associate at Trowers & Hamlins, said: ‘The decision in Uber reinforces that the use of apps and technology to facilitate new ways of working cannot be used to avoid honouring workers' rights.
‘This decision was not unexpected following the growing number of cases where Tribunals have concluded individuals were workers and not independent contractors. It's unlikely to be the end of the story, however, given other "gig economy" cases will soon reach the higher courts and Uber is likely to appeal.
‘In the meantime there may be pressure on the government to focus on the Taylor Review of Modern Working Practice's recommendation of creating "dependent contractors" who are eligible for worker's rights.’
