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.
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.
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.