The Employment Appeal Tribunal (EAT) has upheld the decision of the Employment Tribunal last year that Uber drivers are workers, rather than being self-employed, and thus have the right to be paid the National Minimum Wage or the National Living Wage and to receive holiday pay.
The case was brought by a number of past and present Uber drivers, who argued that they were entitled to protections under the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998.
Uber argued that it merely provided, through its smartphone app, a means for drivers to facilitate running their own businesses and that it did not run a transportation business. Uber also emphasised that drivers were free to decide when they worked and were not obliged to be logged on to the app at any given time or to accept any specific driving assignment, maintaining that this freedom was incompatible with the existence of any form of employment.
The ET dismissed these arguments, commenting that 'the notion that Uber in London is a mosaic of 30,000 small businesses linked by a common "platform" is to our minds faintly ridiculous'. The ET found that drivers were under a 'worker' contract for the time they were in the area where they were allowed to work, were using the app and were able and willing to accept assignments. The documentation governing Uber's relationship with its drivers contained 'twisted language' and 'brand new terminology', and went to great efforts to stress that Uber did not provide transportation services.
Uber appealed against the ET's decision, arguing that, like other taxi drivers, its drivers are self-employed and are under no obligation to use its booking app. It contended that the ruling could deprive drivers of the 'personal flexibility they value'. The EAT disagreed, however, and dismissed Uber's appeal.
In the EAT's view, there was nothing inconsistent or perverse about the ET's conclusions. The contractual documents did not reflect the true relationship between the drivers and the London subsidiary. The reality was that the drivers formed a central part of Uber's business in providing transportation services. The level of control to which they were required to submit and the obligations imposed on them pointed away from a conclusion that they worked on their own account and that their direct contractual relationship was with their passengers. It could not be said that the London subsidiary merely acted as the drivers' agent.
Commenting on the case, TUC general secretary Frances O'Grady said, "Uber should throw in the towel and accept today's judgment. No company, however big or well-connected, is above the law. Uber must play by the rules and stop denying its drivers basic rights at work."
However, Uber is adamant that its drivers value the freedom self-employment provides and intends to appeal against the EAT's decision.