Aslam v Uber BV

Employment Tribunal

The Employment Tribunal unanimously held that Mr Aslam and Mr Farrar were entitled to the minimum wage and holiday pay. They were workers, although the Tribunal did not specify whether the claimants were also employees. Uber's terms and conditions were contrived to misrepresent the true relationship of the parties. Uber subjected its drivers to substantial control and monitoring through its app, and was to be regarded as an employer.

Uber drivers have been held by the Tribunal to be ‘workers’ under the definition in s.230(3)(b) of the Employment Rights Act 1996. Known as ‘limb (b) workers’ this entitles the drivers to a variety of rights in relation to their hours and pay. It also paves the way for others who work via apps, but whom are nominally regarded as self-employed, to test these waters.

A copy of the judgment is available here https://www.judiciary.gov.uk/wp-content/uploads/2016/10/aslam-and-farrar-v-uber-reasons-20161028.pdf

Uber have already indicated that they intend to appeal the decision of EJ Snelson and his colleagues in the case of Aslam & Farrar v Uber BV (case no 2202550/2015).

This decision will not only provide the drivers with their claims for holiday pay, national minimum wage and the right to rest breaks. By coming within the ‘extended definition’ in s.43K Employment Rights Act 1996, the drivers will also gain the protection of whistleblowing legislation.

Uber defended the claims of unfair dismissal, holiday pay, sick pay and whistleblowing on the basis that they are merely the providers and managers of an app, which is available to the self-employed drivers and that this is entirely distinct from the running of a taxi business.

The Tribunal were open as to the “ degree of scepticism” which they held over Uber’s position that they did not provide a taxi service and that they did not employ any drivers. They described the evidence of the Uber witness as “grimly loyal”, as they clearly did not like her unrelenting position on the “twisty ” wording of the contracts and the nature of the work undertaken by the company. Ultimately holding that “it is…unreal to deny that Uber is in business as a supplier of transportation services” and that “Uber runs a transportation business”.

The Tribunal found that the notion that Uber is a “mosaic of 30,000 small businesses linked by a common ‘platform’ is to our minds faintly ridiculous”.

The Tribunal has carefully set out the relevant views of the many precedent cases on this point, carefully noting that there can be no better guidance than the careful application of the law to the facts on each individual occasion.

As to the way in which these facts sit within s.230(3), the Tribunal is clear that there was personal work by the drivers under a contractual relationship. They found that the written contract bears no relation to reality, in a manner similar to the outcome of Autoclenz Ltd v Belcher.

The Tribunal also held that the driver is working at any point when he is within his appointed territory, has the app switched on and is ready and willing to accept trips and not merely when he accepts a trip. This may have implications for working time and pay issues.

With regard to the National Minimum Wage Regulations 2015, the Tribunal held that this was ‘unmeasured work’ and that any time spent travelling back to his territory after a trip had taken him away from that territory should also be treated as work. Once again this may have implications in other delivery and care sectors.

Employment Appeal Tribunal

Employment Appeal Tribunal issued a verdict on 10 November 2017 - APPEAL DISMISSED The prolonged employment tribunal case first began in 2016 and represented by the Independent Worker's Union of Great Britain. Uber drivers James Farrar and Yaseen Aslam argued that the employment status they had been assigned by Uber – namely, ‘self-employed’ – was incorrect and that they should instead be classed as ‘workers’. The change in status would mean the pair were entitled to holiday pay, paid rest breaks and the minimum wage.

Uber maintains that its UK drivers do not qualify as workers and are therefore not entitled to these rights. The original tribunal decision – which Uber appealed – found in favour of the drivers and after a further set back, it is expected that Uber will look to take the case to the Court of Appeal, and, if necessary, the Supreme Court.

So, what are the facts of the case?

There are three categories of working individuals in the UK. These are the self-employed, workers and employees. The self-employed do not enjoy any significant statutory employment rights; workers are entitled to certain rights, such as to be paid the national minimum wage, holiday pay, pension contributions, the right to claim sick pay and, in some cases, rights under the Transfer of Undertakings Regulations.

Employees have additional rights on top of those of workers such as maternity or paternity pay, shared parental leave, statutory notice on dismissal, redundancy payments and the right not to be unfairly dismissed after two years of continuous service.

In the Uber case, the drivers claimed that Uber was unlawfully withholding rights they are entitled to by not recognising them as workers. For example, Mr Farrar said his net earnings in August 2015 after expenses were £5.03 an hour – below the minimum wage. The drivers also argued that their actions were controlled by Uber, so in effect they were employed by the firm.

Once a driver accepts a job he or she is not notified of the destination, the drivers claimed, and faces punitive measures if they don’t perform well enough, for example, following a customer complaint. The two drivers also claimed sums of money were frequently deducted from their pay, often without advance warning.

Uber claims 80 per cent of its drivers would rather be classed as self-employed. Only 25 per cent log in for 40 or more hours per week in some months, it says. The drivers use the app to find leads because it allows them to work flexibly, Uber says. The firm call them ‘partners’ and says they can ‘become their own boss’. Uber says that it does not set shifts or minimum hours, or make drivers work exclusively the company. In one month, Uber said that drivers for UberX made £16 an hour on average, after Uber’s service fee.

If the drivers win their legal battle and are deemed to be workers of the business, they would be entitled to receive the national minimum wage. Uber would be liable for any difference in pay if there has been a shortfall in wages so far. Any workers aged 25 or over would be legally entitled to receive the National Living Wage which is currently at £7.83 and again, if there has been a shortfall in pay, the drivers will be entitled to re-claim the backdated payments they should have received. NOTE: This is after drivers expense!

The firm has more than 60,000 licensed drivers in 20 UK towns and cities making more than a million trips per week.