In an important test case, online taxi operator Uber has challenged as perverse an Employment Tribunal (ET) ruling that thousands of drivers who rely on its app for their livelihoods are ‘workers’ within the meaning of the Employment Rights Act 1996 (ERA).
The ET’s decision in a case brought by 25 cabbies meant that Uber was obliged to afford drivers a panoply of rights under the ERA and pursuant to the Working Time Regulations 1998 and the National Minimum Wage Act 1998. The ruling was later upheld by the Employment Appeal Tribunal, but now Uber B.V. and its two UK subsidiaries are challenging that outcome before the Court of Appeal.
Uber’s lawyers argued that the ET wrongly disregarded the written contracts in which the agreements between the company and drivers were recorded. Those contracts were consistent with the reality of the situation and should have been regarded as strong evidence of the parties’ intentions.
It was submitted that the ET erroneously found that the drivers were providing driving services to Uber and that it was the company that contracted as principal with riders. On the contrary, Uber’s relationship with drivers, who contract with the company for access to its app and a licence to use the same, was properly characterised as one of agency. It was argued that such a relationship was unremarkable, having been commonplace in the private hire vehicle industry for many years and having been recognised and approved by HM Revenue and Customs. The fact that Uber is subject to regulatory obligations was a neutral factor and did not mandate the existence of either a worker/employer or an agency relationship.
Uber’s legal team also argued that the ET erred in finding that drivers’ hours of work encompass any period when they have the Uber app switched on and are able and willing to work. There was no evidential basis for the ET’s factual finding that drivers who turn away fares when they have the app turned on can be subjected to sanction. The reality was that Uber had no contractual right to require drivers to accept or not to cancel trips when the app is switched on and that drivers had no corresponding obligation to do so.
Lawyers representing the drivers are resisting the appeal on the basis that the ET reached conclusions that were correct in law and open to it on the evidence. The Court has now reserved its judgment on the case and will give its ruling at a later date.
