The Employment Appeal Tribunal (EAT) has upheld the ruling against taxi organisation Uber, stating that its drivers are employed as workers and are entitled to employment rights such as the national minimum wage and holiday pay.
In the case of Aslam and Farra v Uber, the drivers contended that they were workers rather than independent contractors, and were therefore entitled to workers’ rights such as the national minimum wage and holiday pay.
The 25 drivers’ claims, which were brought by the GMB trade union, were originally heard in a preliminary hearing at the London Central Employment Tribunal in July 2016. The decision, which was published in October 2016, found that the drivers were employed as workers within the meaning of the Employment Rights Act, National Minimum Wage Act, and the working time regulations. The tribunal found that the claimants were engaged in unmeasured work for the purposes of the National Minimum Wage Regulations, and that their working time should be calculated in accordance with the working time regulations.
Uber was granted the right to appeal the ET’s decision in April 2017. The appeal was heard at the EAT in London on 27 and 28 September 2017, with the decision being published today (10 November 2017). The EAT has upheld the ET’s ruling and dismissed Uber’s appeal.
As part of the ruling, the EAT also confirmed that the period from when drivers are logged on and are ready and willing to accept rides counts as working time, meaning that drivers should be paid at least the minimum wage for that whole period.
Since the case was first heard in July 2016, the number of GMB member claimants in the group claim has increased to 68.
Uber has approximately 40,000 drivers in the UK.
Her Honour Judge Eady, who made the EAT judgement, said: “I am satisfied the ET did not err either in its approach or in its conclusions when rejecting the contention that the contract was between driver and passenger and that ULL was simply the agent in this relationship, providing its services as such to the drivers. Having rejected that characterisation of the relevant relationships, on its findings as to the factual reality of the situation, the ET was entitled to conclude there was a contract between ULL and the drivers whereby the drivers personally undertook work for ULL as part of its business of providing transportation services to passengers in the London area.
“The claimants’ case was not put on the basis of an umbrella contract and the ET found they were only working under a contract to personally undertake work or services for ULL as and when they had the app switched on, were within the territory in which they were authorised to work, and were able and willing to accept assignments. Allowing that there could be gaps, when the drivers did not meet these requirements, the ET did not consider that to be fatal to their status as ‘workers’ when they did.
“On the ET’s findings, I certainly see no difficulty with that conclusion in respect of those periods when a driver accepts a trip from ULL, the obligation assumed at that point is clear; the trip is assigned to that driver and there is an expectation that they will undertake the assignment personally, for which they will be paid at a rate laid down by ULL, or face possible penalties if they fail to do so.”Tom Elvidge, acting general manager at Uber UK, said: “Almost all taxi and private hire drivers have been self-employed for decades, long before our app existed. The main reason why drivers use Uber is because they value the freedom to choose if, when and where they drive and so we intend to appeal.“The tribunal relies on the assertion that drivers are required to take 80% of trips sent to them when logged into the app. As drivers who use Uber know, this has never been the case in the UK. Over the last year we have made a number of changes to our app to give drivers even more control. We’ve also invested in things like access to illness and injury cover and we’ll keep introducing changes to make driving with Uber even better.”Paul Jennings, partner at Bates Wells Braithwaite, one of the law firms representing the claimants, said: “We are delighted with today’s judgment which is ethically and legally the right outcome. The ruling will have significant implications for approximately 40,000 Uber drivers and, more broadly, individuals engaged across the so called ‘gig economy’. We anticipate that tens of thousands drivers will now seek to make substantial back-dated claims. Our clients have fought tirelessly to gain the rights that they clearly should have been afforded from the outset.”
Nigel Mackay, employment solicitor at Leigh Day, also representing the claimants, added: “We are very pleased that the EAT has rejected Uber’s appeal. We have always believed that the Employment Tribunal’s decision from last October was entirely correct in saying that our GMB member clients were entitled to workers’ right such as the minimum wage and holiday pay.
“We now hope that Uber will accept this decision, rather than pursuing further appeals, so that we can swiftly return to the Employment Tribunal on behalf of our GMB member clients, for the tribunal to decide the compensation that they are entitled to.”
Maria Ludkin, legal director at GMB, said: “This landmark decision is yet more vindication for GMB’s campaign to ensure drivers are given the rights they are entitled to, and that the public, drivers and passengers are kept safe. GMB is delighted the EAT made the correct decision to uphold the original Employment Tribunal ruling.
“Uber must now face up to its responsibilities and give its workers the rights to which they are entitled. GMB urges the [organisation] not to waste everyone’s time and money dragging their lost cause to the Supreme Court.”
Crowley Woodford, employment partner at law firm Ashurst, said: “The implications of this appeal decision reach far beyond the price of a taxi journey home. Uber's business model for its workforce has again been found to be fatally flawed; the so-called ‘self-employed’ drivers are in fact workers entitled to basic rights such as holiday and sick pay. This decision has re-opened a can of worms which will have a ripple effect on the financial viability of the gig economy in its current form and beyond that into mainstream industries.”
