The Supreme Court has handed down its judgment in the case of Uber BV and others v Aslam and others – the 'Uber drivers' case. This decision by the highest court in the land deals with the question of whether Uber drivers are fully self-employed or whether they fall within the statutory definition of 'workers' who have additional rights. The ruling will be of interest to many other business operators and individuals, particularly within the gig economy.

The case has a long history, beginning in the employment tribunal five years ago and being appealed to a higher body three times since then. On each occasion the claimants were deemed to have worker status by virtue of the particular terms they worked under for Uber, prompting the business to take its case to the next level.

The Supreme Court upheld the original tribunal's conclusion that the drivers were workers.

Worker status and its importance to the claimants

The concept of a 'worker' was created by the Employment Rights Act 1996 and effectively establishes a status between a full employee and an independent contractor. An individual may not be able (or want) the necessary closeness of relationship with the party receiving their services to qualify as an employee, but if they provide those services personally to someone who is not a client or a customer, they may be a worker.

The value to the claimants in the Uber case is clear. While workers do not have the full range of rights and protections available to employees, they are entitled (unlike independent contractors) to some of them including:

  • Paid annual leave and other breaks under the Working Time Regulations 1998
  • Payment of the National Minimum Wage
  • Protection against unauthorised deductions from pay
  • The right to make a claim if they are discriminated against under the Equality Act 2010 or mistreated as a whistleblower

The Supreme Court found that the original employment tribunal was entitled to decide the drivers were workers based on the specifics of the relationship. A central theme was that the drivers were in a position of 'subordination and dependency'. Their terms were 'very tightly defined and controlled' by Uber, from deciding on who could become a driver, to setting their fares and routes and regulating their performance and conduct. The Court again rejected Uber's argument that the drivers were contracting with passengers rather than Uber itself, citing its practice of restricting interaction between driver and passenger to the bare minimum.

In taking this approach the Court emphasised that when assessing whether individuals fell within the scope of legislation created to provide a minimum wage, holidays and other similar rights, attention should be given to the purpose behind that legislation, for example an intention to ensure people could make a living from their work, and do so safely. The specific wording of any contract would be relevant, but when drawn up by one party holding the balance of power in the relationship it should not be over-relied upon. It might be easy for a document to be created by such a party specifically to imply an individual fell outside the definition of worker when the daily reality of the relationship could suggest otherwise.

The question of when were workers actually working

The claims raised a second issue relating to their status – when were they 'working'? The answer to that question is relevant to issues such as which time Uber was obliged to pay them for, whether their earnings were above the National Minimum Wage threshold, and how they accrued breaks and holidays.

At the stage before this, the Court of Appeal held that the drivers needn't be driving passengers in order to be working, as Uber had argued. It found that a driver would also be working if he or she was logged onto the relevant app to indicate their availability to take fares, and was in the particular territory where they were authorised by Uber to operate. This inclusion of waiting time was clearly also advantageous to the drivers as they would be entitled to pay for it and it would count towards their accrual of rest breaks and paid leave.

Again, the Supreme Court agreed that this conclusion was reasonable on the facts.

Where to now?

Since its earliest stages the rulings made in this group of claims have been of interest and relevance to many operators of flexible labour models throughout the UK. The test of worker (or indeed employee) status depends on weighting up a number of factors, some which may point in favour of that outcome and others which may go against it. The very specific way that Uber engages its drivers was closely analysed in order for the decision to be made, and the high degree of control that it exercises over its drivers from recruitment onwards was significant. Other operators' models may sit at a different point on the spectrum and, if challenged, an alternative outcome may be reached. Uber itself will clearly need to review its operations, not least to deal with around 1,000 similar claims reported to have been lodged and held in the system awaiting last week's outcome.

The Supreme Court's decision marks the end of this particular journey and if nothing else the certainty that brings will be welcome.

For more information on any of the issues raised in this blog, please get in touch with a member of the employment and immigration team.


Brian Campbell

Legal Director