In July 2016 we wrote about the importance of determining a person’s correct employment status by referencing an Employment Tribunal claim that was being pursued by a number of Uber drivers. The decision of the London Central Employment Tribunal hearing was handed down on Friday 28 October 2016 and has been widely reported in the mainstream and legal press.
In Aslam (and ors) v Uber BV (and ors) the Tribunal decided that Uber drivers are in fact workers, and not the self employed contractors that Uber tried to make them out to be. As the drivers fall within the legal definition of a worker in s230(3)(b) of the Employment Rights Act 1996, they now enjoy various statutory rights and benefits such as the right to receive national minimum wage and rest breaks.
The Tribunal was not at all impressed by the way in which Uber attempted to represent itself as a ‘technology services provider’ and ‘booking agent,’ thus denying the fact that were in the business of ‘providing rides’, something that has made the company such a huge international success. Uber went to remarkable lengths to convince the Tribunal of their case resorting in its documentations to fictions, twisted language and even brand new terminology.
The Tribunal were equally unimpressed by the evidence given by Uber’s UK Regional General Manager referencing Shakespeare (which is not something you normally hear in Employment Tribunals) when they said ‘The lady doth protest too much, methinks’.
The judgment is quick to stress that Uber themselves are crucial to the proper functioning of the service provided by their drivers, as those drivers and their potential customers can only connect through the app which is heavily monitored by Uber. Further to the assertions and documents that Uber presented in the case were found to be inconsistent with the reality their drivers face.
For example Uber had created written agreements that imply that drivers are self employed contractors who themselves enter into contracts individually with passengers. The written agreement places the sole responsibility for the driving service on the drivers, whom are referred to as partners, and reiterate the assertion that Uber has no part in the provision of transportation services whilst all the time monitoring drivers, determining routes, setting fares and collecting payment (and their fee) on behalf of drivers through the app. Uber were also found to influence a drivers ability to decline rides by way of disciplinary action.
To keep up the façade the company goes as far as sending invoices on behalf of the driver to passengers who do not receive them in order, seemingly, to evidence the self employed status of drivers.
The Tribunal challenged this portrayal and went behind the written agreement by looking at Uber’s recruitment process, publicity material, website and even tweets all of which demonstrated that they are very much in control. The Tribunal noted that in reality the nature of the relationship between Uber and the drivers was inconsistent with the notion of a self employed contractor because of this element of control.
They are able to discipline drivers through penalties, with the ultimate sanction being dismissal (although Uber referred to this as ‘deactivation’). Evidence was heard that drivers must meet certain requirements and Uber also ensures that drivers adhere to a ‘Safety & Quality’ guide that resembles a Code of Conduct similar to one you would expect to have in the workplace.
Once the driver passes the recruitment process they are expected to own a car that must be approved by the company. Uber does not share the identity of the customer to the driver until pick up, which makes it difficult to comprehend the suggestion by Uber that there was only ever a contract between the driver and customer.
It is evident that the reality of the working arrangement was inconsistent with what was stated in the written agreement. The Tribunal conclusion that the drivers are workers is consistent with the reality of the relationship.
Uber has confirmed that it will appeal the decision and no doubt this case will rumble on for some time.
By Samantha Dickinson and Eguono Ogueh