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Uber Appeal - What Can You Learn from the Latest Developments?

on Friday, 17 November 2017.

Uber has been in the news frequently recently, with questions over the status of their workers dominating the headlines. In the most recent verdict given, the tribunals have confirmed that Uber drivers are workers.

Workers v. Self-Employed Contractors

The Uber case began when two drivers argued that they met the definition of 'worker' under the Employment Rights Act 1996. Uber argued that they were self-employed contractors. The Employment Tribunal (ET) found in the drivers' favour.  

Uber appealed on the basis that the ET had failed to properly consider the written contracts that were in place and had not taken account of the fact that, even while signed into the app, drivers were able to take on or refuse work as they chose.

The Employment Appeal Tribunal (EAT) rejected these arguments. It emphasised that the ET was entitled to disregard the terms used in the written contracts on the basis of its finding that the terms did not reflect the reality of the situation between the parties. It has long been established that tribunals can look behind written contractual documents in order to determine the true nature of the employment relationship.

With regards to drivers having the discretion to choose or refuse work when logged into the app, the EAT agreed with the ET that this did not prevent the drivers from being workers. Of particular significance was the fact that drivers were expected to accept a high percentage of trip requests whilst signed in to the app. The EAT also noted that the 'Welcome Packet' given to new drivers explained that "Going on-duty means you are willing and able to accept trip requests".

Best Practice

This case reiterates the need for businesses who employ individuals as self-employed contractors to review their business model and assess whether there is any risk of those individuals being classified as 'workers'. Unlike the self-employed, workers are entitled to the statutory minimum wage and paid holiday.  

It is also interesting to note the EAT's comments on the realities of an agreement between parties. Employers should be aware that written documentation cannot be solely relied upon to demonstrate the nature of the relationship. If employers believe a working relationship to have a particular status then this must be shown through conduct as well as contractual documents.

For more information, please contact Michael Halsey in our Employment team on 020 7665 0842.  

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