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Uber in the Supreme Court: The case so far

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BPTC student Joshua Xerri provides a summary of this week’s two-day hearing and considers some of the wider issues impacting the so-called ‘gig-economy’

The Supreme Court’s two-day hearing of the Uber BV and others v Aslam and others case concluded this week. It will doubtless be a landmark judgment in the field of employment law, and particularly the questions surrounding the so-called ‘gig-economy’.

What is the background to the case?

The Employment Tribunal heard claims by Mr Aslam and others under the Employment Rights Act 1996 and the National Minimum Wage Act 1998, alongside associated regulations, for failure to pay the minimum wage, and failure to provide paid leave. Uber defended the claim with the assertion that the claimants were not “workers”, and therefore were not afforded protection under the Acts and Regulations.

The Employment Tribunal decided that the claimants were employed as “workers”, and that each of the claimants’ working hours began whenever they were within their working territory, had the app switched on, and was ready and willing to accept trips. The Tribunal’s decision centred on the difference between when the app was switched on, and when it was not. It said that, while the app was switched off, there was no question of any contractual obligation to provide driving services, and that there was no ‘umbrella’ contract. However, the Tribunal decided that when the app was on and a driver was working, they would fit the definition of working under a ‘worker’ contract, as defined by the legislation.

The appeals

Uber appealed the decision to the Employment Appeal Tribunal, which was heard by Judge Eady QC, on the following grounds:

i. That the Employment Tribunal had erred in law, as although there was no contract between the drivers and Uber London, there was a written agreement between the drivers, UBV (the parent company), and riders, which were inconsistent with a worker relationship;

ii. The Tribunal had erred by relying on regulatory requirements as evidence of worker status;

iii. That there were incorrect findings of fact, which were inconsistent and perverse; and

iv. Had failed to take into account matters relied on by Uber.

Judge Eady dismissed the appeal, holding that the Tribunal had been entitled to reject Uber’s characterisation of the relationship in their written contracts. She made the point that, in deciding issues of employment status, it is important to look at the statutes, and not rely solely on the definitions and terminology used by the parties; simply because a party uses the word “self-employed” doesn’t mean that that it is in fact the employment status.

Uber appealed further to the Court of Appeal, who also dismissed the appeal, holding that the Employment Tribunal had correctly defined the relationship between the claimants and Uber.

The Supreme Court case

Uber have now appealed to the Supreme Court. The Supreme Court has heard two days of arguments, in front of 7 Justices of the Supreme Court. Uber were represented by Dinah Rose QC and Fraser Campbell of Blackstone Chambers, and the first and second respondents were represented by Jason Galbraith-Marten QC and Sheryn Omeri of Cloisters, and the third respondent was represented by Oliver Segal QC and Melanie Tether of Old Square Chambers.

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The issues to decide were: a) whether the drivers were considered “workers”, and b) if they were, what periods constituted their “working time”. The Court will consider its judgment, but in the meantime, the sessions are available to watch on the Supreme Court’s website.

So why does it matter?

Well, employment status disputes often come to the fore when one party claims they are being denied certain rights which are only afforded to people if they are employed. There are different categories of employment: dependent employees, who are entitled to a wide range of employment rights and benefits; workers, who are entitled to some, but not all, of those rights; and third party contractors, who are afforded very little protection under the employment legislation.

This is obviously very important for the drivers, as if they are considered to be workers, they are entitled to many more rights than if they are not (including some provision for paid leave, etc.) This would have a much wider-reaching impact on the field of employment law. The so-called gig-economy has been widely reported on, and the issues surrounding zero-hours contracts discussed at length. It is a booming industry, with more and more people flocking to work for companies like Uber, in a job market which could see a rise in unemployment to up to 13%, in a worst-case scenario.

As such, the Supreme Court decision will be of vital importance to those who drive for Uber or work for other such similar companies.

Uber in the courts

This is not the only case which Uber has faced in recent months. Last month, the Supreme Court of Canada handed down a judgment which paved the way for a $400 million (£233 million) lawsuit by drivers against the taxi-hailing app. California’s attorney general has also recently sued Uber, claiming that they had wrongly classified their drivers as independent contractors instead of employees, in violation of state law.

What happens next?

The Supreme Court Justices will consider the arguments they have heard, and will hand down a judgment within the next few months. If they dismiss the appeal, as the lower courts have, then Uber will be faced with having to provide their drivers with paid leave and a range of other benefits. If the appeal is granted, however, then thousands of drivers will be left without any real statutory protection in their work.

Joshua Xerri is a BPTC student at Cardiff University.

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Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

42 Comments

J P Humperdink

Excellent article.

Josh

Thanks, dad!

Anonymous

It is a joke how broad the courts are interpreting employment these days, especially when the contractual arrangements clearly intend to create an independent contractor relationship. It is social engineering by the judges.

feasel

It’s almost as if worker and employee are different words with different meanings.

Steve Garelick

I think this is your interpretation alone.

Additionally Judges make decisions based on facts and submissions.

The Uber case was not only brought because of hundreds of litigants for Uber but the basis of the third way for many others in the Gig economy.

One size may not fit all and those who market services on Guru or Fiver are offering a different self employed route.

My qualification in this particular matter is that with Nigel McKay of Leigh Day we sat in a room one afternoon with Uber driver others and came to the conclusion in relation to a worker relationship. I am due soon if all goes according to plan to sign a full worker agreement with a company who has decided this is the way forward just to clarify why such cases are of importance.

Anon

Those in the gig economy do not commit enough to the employer to merit paid leave or other consequences of employment. They are trying to get something for nothing.

Martin Donoghue

Rubbish – Too many employers are trying to flout employment law by using novel terms in so-called contractor contracts – If it quacks like a duck….

Anonymous

No-one is forcing people to sign up to those contracts, pocket the money and then claim benefits they were never meant to get.

Reza

Because of Uber most of the minicab office are close and driver they don’t have any choice.By the time you pay the insurance and the fuel and the cost of car you left with nothing.Unfortunately private hire driver are the one who is suffering a lot

Can

Some people on here don’t fully understand the issue. If you’re self employed then you must be treated as a self employed person. The difference here is that Uber treats it’s drivers as employee’s, taking away all the freedoms of being self employed, and then classes them as self employed.

James

In addition to changing fares and other fundamental aspects of the agreement, at an instance and without any consultation with its ‘Partner Drivers’. Much like an employer does!

Anonymous

You are so correct, about what Uber’s methods are.

George

The big mistake of rideshering companies is that they impose race prices. The driver is not able to give up the race or check the price of the ride. If I don’t accept the race I’m penalized so I’m in the hands of the company. As long as they control everything they have to pay. Good article. Good luck.

Archibald Pomp O'City

Shut up, you illiterate.

Nasar Iqbal

Great well we are self employed and would love to stay and work. Like that in the future I don’t understand what’s the problem with that if you want to be employed and want paid holiday’s and sick pay etc go and work for others company don’t work for UBER

Sunny

This is a joke I don’t want to be employed by a conning company I’d rather stay self employed fuck Uber and fuck all them drivers who go their taxi license on the plate you have fucked the whole taxi trade.

Sourab bhatia

I respect your opinion buddy but u can’t use dis kind of shit language on a social platform dnt be frustrated do whatever u like but dnt disrespect any1 that u dnt even knw its a Trillion dollar company for a reason bro thnxx

Lobert

Stop crying, kid.

Archibald Pomp O'City

Your language is disgraceful. Did your mother bring you up to speak like that? Did she encourage such f-ing and blinding? Use your vocabulary for the good, my friend.

Archibald Pomp O'City

“you have f*cked the whole taxi trade”

That’s right. I can now get into a cab at 4am, when I am at my most drunk and vulnerable, and not have to endure a grubby little negotiation with some bozo who wants to charge me £40 to get home when I can order an Uber (pool), see exactly what price I’m going to pay, and then get home without being mugged for a tip at the end. (I do tip, though).

And that’s minicabs. Don’t even get me started on Black Cabs.

Anonymous

Doing over the taxi trade sounds a plus. They are Luddites now that the Knowledge is replaced by Waze, so the value added of their cartel pricing cannot be justified. Stopped using black cabs when they selfishly blocked the roads of London to maintain their monopoly. Every one of them should have been done for obstructing the highway.

Zafar Iqbal

I am happy working with uber I don’t want sick or holiday pay
I like my freedom
I start when I like finish when I like

Noor Khan

What about London clean air charge? I have accumulated over 3.5K and Uber isn’t giving us to help buy the new car. I don’t understand they say you have to buy the car from their provided companies but none has a electric S Class. Where does it leave us. My car is ilex example so this means that my car has low emissions. Therefore, Uber should give our money to us. God knows how much money they have generated average 3K per driver on average into 30-40K drivers

Robert

I started to drive with Uber because it gave me the freedom to work when I wanted. I accepted that there us no paid holiday etc as I was classed as self employed. I dont want to be told that I must work a minimum number of hours, I want the freedom.

Moe Salem

It sounds like there is a alot of confusion & misunderstanding in terms of reference as to what Uber status and drivers status is here. The key argument here is not just the self employment or employed element… it is the fact the way UBER operates and seems to have all the upper hand and control over the business including the working conditions of the driver – namely the pay, the bookings, & conditions of work, etc.
Therefore, practically, the driver is working under the employed conditions of UBER – its simple!!. No-one is saying drivers have to work 9am – 5pm (or more) working contractual hours …. yet under employment law & under the Rights of the individual the classification has to be set right. And its a win win situation for all.

Not a sheep

Some drivers were born to live as “sheep” so for them holiday pay or workers rights isn’t important they’d rather be “self employed” with “freedom” lol these “sheep” drivers are the reason why uber exploits the rules

Mark

They weren’t born as “sheeps”, maybe its their circumstances or background that makes them used to working like “sheeps”. Before judging someone you should know their whole story, you’d be shocked.

Simbrad

@Mark, the sheep are the ones who want holiday pay etc, sheep want and need to be herded and taken care of, just like the drivers whining for Leanne pay. Same your money for leave. If i were uber i would make a % of their actual pay part of their leave pay, so when they are paid at the end of the month it’s an all inclusive rate.

Archibald Pomp O'City

And what would you be, then? A lion? Somehow I think not.

Driver

Get anything you can get from uber ,they take 25% off us and we do jobs for under 3 pounds it’s slavery
Lots of drivers convince themselves they earn good money without considering costs to run a vehicle

Me

Food delivery 80 hour week after costs insurance petrol.wear and tear. £4.60 an hour. Plus working 12 to 14 hours a day you eat on the go from places your picling up from.
Its easy to think your making money but your not unless you have mulitìple apps from multiple companies and ride a scooter or push bike. Even then uber works it so you dont get more than a certain amount an hour.

Wulfruna

In the case of Julie Delve and Karen Glynn) v The Secretary of State for Work and Pensions (DWP) at the Court of Appeal. If the decision goes either way is this likely to go to appeal?

I have been watching this and I have no idea which way it will go. If it goes against the DWP it will mean a large payout.

I have a very limited legal knowledge however I can’t help but think that the women have been ill advised by taking the route of sex discrimination and age discrimination.

Wulfruna

Further to the above the case was heard last week at the Court of Appeal. The next stage would be the Supreme Court. It’s a very interesting case.

The case involves the equalisation of SPA for men and women. The main issues do not lie with the equalisation of the SPA itself but in the implementation of the changes.

Where the difficulty lies as I see it is that equalisation itself is not discriminatory it’s the opposite.

The implementation did disadvantage many women.

Reg lamonte

Wonder how many of you who love working for uber, would still love them if uber were made to release all drivers earnings to the taxman !!

Maht

Drivers under uber control have no right to choose their trips. Like everywhere else, here in Australia they have to take any trips they are asigned to. It is frequently happened that drivers drive a long distance to pickup a rider just for a very short trip. During rush hours which clear zone apply to most streets in the city, uber urge drivers to pickup riders from those areas leaving drivers with heavy fines. Uber also urges drivers to pick riders at bus stops at any time and drivers should obey. There lots of other instances that clearly show that drivers have absolutely no control on their trips. This is not partnership, but manipulation and dishonesty.

Anonymous

Who is forcing people to drive with Uber then?

cipnt

This is the best ever picture for an article 🙂

George

Classic case of workers rights being thrown in the bin by a company who wants to employ them without the responsibility that goes with it.

Me

Delivered food for 3 months surrounded by fake drivers with multiple phones. I don’t care what im classed as if it means they cleaned up thier act and stop the loop holes of false use and brought in better restrictions and gave honest workers a chance. When you have 1 person working under 3 alias with 3 phones, thats 3 job positions. If becoming an employee erases this issue then it can only be for the better 1000s of people in the UK are going to need work and its people with alias that are helping to drain the funds and equal chances for others to gain some financial income and Uber need to sort this out.

mark

I’m a uber driver in leeds .when the app is switched on you are effectively at work as you have to be available for a trip you can only work for one firm in leeds and have to be a licensed driver with a licensed vehicle and my new hybrid because of the clean air zone was 25000 pounds that I bought from a house sale not from my profits from 3 years at uber thats a fact and when you take your costs off after a 50 hour week you will be left with under 8 pounds an hour under the minimum wage. Now how is this morally right regardless of holiday pay.and as for the axa insurance that uber set up on our behalf ive been shielding for 4 months under NHS order and they wouldn’t pay out so what use was that.hows about no rights or holiday pay but lets say uber should maybe not charge a 25 % fee until a driver can make 15 pounds an hour and maybe make more than minimum wage or less once costs are taken into account and let me tell you how do you expect all these drivers earning less than minimum wage to finance all these new hybrids and electric vehicles you all want clean air dont you.they only want either fair pay or rights its simple but you can’t have low pay with no rights.uber have just recently lowered the base fare in leeds when its quite how many drivers wanted that nobody asked

Kushaba kenedy Kabanga.

Since the court intends to set aside the principle of parties own realisation I think common law will lose meaning.

The point of contention that would arise in such circumstances is whether the employment statutes overide common law principles.

If so be the case, the ‘gig economy’ remains at stake of every day litigation.

The tests that were relied upon by the employment Triburnal seem to have nothing to offer may be this time round we shall face the economic reality test. With the advent of techinology I think if I may,the drivers should be granted leeway though with limitations.

Thanks.

Andy w

The uber company is in millions of pounds of debt,it is bankrupt by nature,the sheeple are being conned into the wage gap divide while the bosses at the head of the uber company are creaming it in

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