On 19 February 2021 the Supreme Court upheld the Employment Tribunal’s decision in the Uber BV v Aslam & Others case. It was held that Uber drivers are ‘workers’ and not self-employed.

The facts

The court considered several elements in its judgment:

• Uber determines the fare, which means they decide how much drivers may earn;
• Uber determines the contractual terms, without any drivers say in them;
• Uber controls ride requests and may penalise drivers if they decline too many rides; and
• Uber monitors driver service levels through their star rating system and has the ability to discipline drivers and even terminate the contract if their level of service does not improve.

As a result, Uber’s appeal stating that it was an intermediary was dismissed. Taking the above into account, the court held that the documentation between the parties did not match with the reality of the work. Instead, it was decided that drivers were working for Uber and are therefore classed as ‘workers’. It was determined that Uber’s drivers are working whenever they are logged on to the app, whether or not they have a passenger.

What does this mean for employers?

The significance of being classed as a worker is that it means Uber drivers are entitled to claim a minimum wage based upon their ‘working day’ (whenever they are logged on to the app). This leaves Uber vulnerable to employment claims from its workers as they are able to claim up to 2 years’ backpay or £25,000 (whichever is larger) in an employment tribunal.

The workers are also able to claim paid annual leave and will have whistleblowing and other rights. It is important to note however, they do not have ‘employee’ rights such as the right to a redundancy payment or to claim unfair dismissal.

Key takeaway

This case should remind employers that a tribunal may find that you are not bound by that language of your documentation. The tribunal will look at all the facts of the case when determining worker status and rights. Our employment team regularly advise and review contracts for employers of all sizes. Please contact us if you would to discuss an audit of contractual documentation for your organisation.

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For further information, or to discuss the issues raised by this update, please contact our Employment Group on 0118 977 4045 or employment@herrington-carmichael.com.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.