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Employment status: Uber drivers found to be workers

There was a flurry of excitement in the SCE office last Friday.  One contributing factor was the arrival of the employment tribunal’s eagerly anticipated decision on whether Uber drivers were employees, workers or self-employed.  Back in August 2016, we first reported on the case.  The Judgment landed mid-afternoon on Friday and we spent our weekend considering the 40-page document to bring you this breaking news!

A Preliminary Hearing was held in the Uber case, principally to determine the employment status of Uber drivers.  The drivers were alleging they were either employees or workers, with Uber adopting the conflicting opinion that they were in fact self-employed contractors. 

If the drivers succeeded to establish employment status (whether as employees or workers), it would be significant for all concerned as workers have limited employment rights, which include the right to be paid the National Minimum Wage and the right to paid holiday.  The case was of vital importance to the estimated 40,000 Uber drivers in the UK.

In summary, the drivers argued:

  • They were required to personally perform the work and could not send a substitute;
  • Uber’s terms stated they should accept at least 80% of trips when ‘logged on’ to the App to retain their account status;
  • Uber plans the route for each journey and departure from that route could have adverse consequences for the driver;
  • Uber stipulates the make, model, age and preferred colour of vehicles;
  • Uber, in a variety of ways, instructs, manages and controls them;
  • Uber monitors their performance and has a series of “quality interventions” which it subjects them to; and
  • The written terms between Uber and drivers did not truly reflect the relationship and were designed to misrepresent it.

In summary, Uber argued:

  • Its terms and conditions did not impose any obligation on drivers to be available for or accept work;
  • It did not direct or control drivers or passengers;
  • Drivers supply their own vehicles and are liable for all associated costs;
  • Drivers treat themselves as self-employed for tax purposes;
  • It does not provide transportation services and simply offers a connecting tool between drivers and passengers;
  • It provides a method for drivers to promote themselves;
  • Any arrangement between it and drivers could be terminated at any time, without notice; and
  • Drivers were independent contractors.

The key findings of the tribunal were:

  • That Uber’s written terms contradicted a number of its working practices and the written terms did not accurately reflect how things actually operated ‘on the ground’;
  • Uber essentially interviewed and recruited drivers;
  • Uber controls all key information in relation to passengers and excludes drivers from it;
  • Uber automatically forces drivers to log off the App if they fail to accept or cancel trips in accordance with stipulated requirements;
  • Uber essentially controlled the fee for the journey and drivers were discouraged from soliciting tips;
  • Uber routinely accepted liability for fraud or refunds as a result of passenger complaints; and
  • Uber imposes various conditions on the drivers, instructs drivers how to do the work and controls their performance.

The potential ramifications of this Judgment are huge.  The parties’ have been afforded time to digest and consider the Judgment and then submit written representations to the Tribunal by 02 December 2016 on how the case should progress from here.  Uber’s representatives have already stated the decision will be appealed, so the saga will undoubtedly continue for some time.

The Judgment is reflective of the employment status advice we give here at SCE Solicitors.  We always advise clients that challenges over status will usually be determined based on the reality of the situation rather than the terms of any written documentation.  If you have any queries about employment status, would like to discuss the status of those working within your business or you have any other employment law enquiries, please contact me on 0113 350 4030 or at hello@scesolicitors.co.uk.

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SCE Solicitors is a boutique employment law and dispute resolution practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here. 

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