Uber B.V. v Aslam Court of Appeal – December 2018
This case was heard in the Supreme Court in July 2020. The outcome of the appeal is awaited. This is a case for the tens of thousands of drivers working for the company Uber, who were involved a careful analysis of the employment status of two drivers working for the organisation. Uber is a smartphone application used by people for ridesharing, the app pre-calculates the fare, estimates a time of arrival and takes payment from the credit or debit card uploaded to the account in use.
The drivers did not claim they were employees, but workers and, therefore, entitled to the minimum wage under the National Minimum Wage Act 1998 and to paid leave under the Working Time Regulations 1998.
Uber had maintained that the drivers were running their own businesses as third-party contractors and consequently did not have any worker rights. Asserting that it was only a technology platform and not a transportation business. However, the following factors were relevant to the decision that the drivers were workers:
- Drivers provided their services under a contractual relationship and made themselves available to carry passengers to their destinations for payment.
- Drivers were unable to develop their own businesses. For example, fare calculations were completed by Uber, and deductions could be made to the drivers’ payments if passengers objected about overcharging.
- The majority of the judges felt there was a “high degree of fiction in the wording” of the contract between Uber and the drivers and that there was a high-level of control over the drivers that was consistent with the worker relationship.
One of the judges disagreed and stated the relationship was similar to the traditional minicab model, under which drivers are usually considered to be self-employed.
Take away points
- Employers must always ensure that a contract exists which accurately reflects their working practices.
- Referring to an employee in a contract as self-employed is not an assurance that they are not a worker who is entitled to minimum wage as well as paid holiday.
- The principal elements of a genuine independent contractor relationship are that the individual is in control of their work (and not the employer) and the worker takes any element of financial risk.