Uber drivers in London have been found to be workers of the
company rather than self-employed contractors. The Employment
Tribunal judgment, which was overtly critical of Uber's
approach to the employment status of its drivers, was released on
A number of Uber's drivers in London brought claims against
the company arguing that they had been underpaid the national
minimum wage and denied rights under working time legislation. The
company's position was that the drivers were self-employed
contractors with no entitlements to such rights. In looking at the
specific cases of two drivers, Mr Aslam and Mr Farrar, the
Employment Tribunal concluded that the drivers were indeed workers
with the associated rights and entitlements.
The Employment Tribunal held that the contractual documentation
between drivers and Uber "bears no relation to reality"
and was not "a contract at arm's length between two
independent business undertakings". Uber claimed that it acted
as a kind of agent or introductory service which gave drivers
introductions to clients, whereas the reality was that the drivers
worked 'for', not 'with' the company.
The Employment Tribunal pointed to a number of features of
Uber's relationship with the drivers. At the outset, drivers
were selected and interviewed by Uber in something comparable to a
recruitment process. Though drivers would supply their own cars,
Uber only accepted certain makes and models and stated a preference
as to colour (black or silver, incidentally). Once selected,
drivers were given an induction and a welcome pack including
'star tips' on how to provide a quality service.
Whilst it is true to say that drivers were not obliged to turn
on the app at any particular time, the Tribunal held that once they
did, they were subjected to several controls imposed by Uber. Uber
controlled the information the drivers were given, including the
passenger's identity and the final destination. Its technology
also set a route for the drivers to follow – whilst a driver
could divert from that route, they could be reprimanded for doing
so if a customer complained. They were obliged to follow a
cancellation procedure and would be locked out of the app for 10
minutes if they declined 3 pick-up requests in a row.
Many of the procedures outlined in the contractual documentation
were held by the Tribunal to be relabelled versions of standard
employment policies. For example, drivers falling below a 4.4 star
rating would be subject to a series of 'quality
interventions' and their accounts could be deactivated if they
failed to improve. The Tribunal saw this as a form of performance
management procedure which could culminate in dismissal.
Fundamentally, the Tribunal took the view that "the notion
that Uber in London is a mosaic of 30,000 small businesses linked
by a common 'platform' is to our minds faintly
Whilst this is only a first instance decision which is set to be
appealed, it serves as a cautionary tale for businesses forming
part of the 'gig economy'. Similar cases involving couriers
and Deliveroo drivers are coming up and could be decided in a
With that in mind, all businesses may want to take the
opportunity to review their contractual arrangements with
contractors and ensure that they are a true reflection of the
working relationship. If not, the best course is to update and
amend contracts at an early stage to minimise the risk of
litigation and tax liabilities.
Mr Y Aslam, Mr J Farrar and others v Uber BV, Uber
London Ltd & Uber Britannia Ltd 2202551/2015
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In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
Case law concerning the Agency Worker Regulations remains limited. We recently advised a recruitment business involved in a dispute with a "temp" and a hirer regarding who was liable for an alleged breach of AWR Regulation 5.
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