By Kevin Basnett, 21st February 2021
On Friday 19th February 2021 the Supreme Court issued its Judgment in the long running case of Uber BV and others (Appellants) -v- Aslam and others (Respondents)  UKSC 5. On appeal from:  EWCA Civ 2748 – to give it its official title.
This is the long running case that kicked off in the Employment Tribunal in 2016 and found its way to the Employment Appeal Tribunal, then the Court of Appeal and finally the Supreme Court in which Mr Aslam and 30 or so of his colleagues claimed that they were not truly self-employed and were entitled to “workers” rights. Every Court agreed with them including the six Justices of the Supreme Court who were collectively agreed on the judgment. Interestingly along the way one Justice of the Supreme Court fell ill and as it was uncertain when he would return to work the court ‘reconstituted itself’ so that the six could give Judgment rather than start again.
This case like many disputes on “employment” status is all about control and power.
If one is truly self-employed or delivering a gig (e.g. a busker), there is very little control of what you do and how you do it or if there is some control it is up to the individual concerned as to whether or not they take the gig.
Once you start adding in more and more control you move from the gig end of the market to the employment (master and servant) end of the market. If you go even further than that, depending on what you do, you become a slave master or slave. That is illegal. The control around that is the Modern Slavery Act and the Gangmaster Legislation.
So where is the control in the Uber case? When Uber went into the ‘cab’ market they wanted their users (and the Courts) to believe that this really was a true gig and those Uber drivers had a lot of control and freedom about when they worked, how they worked etc. To some extent and on the face of it they did but when the Courts and now the Supreme Court looked at the detail, they identified five key areas of control. They are: -
When the ride is booked with the Uber App it is Uber that sets the fare and the drivers are not permitted to charge more than the fare calculated by the Uber App.
The Contract terms on which drivers perform their services are imposed by Uber and the drivers have no say in them.
Once a driver has logged onto the Uber App, the driver’s choice about whether to accept requests for rides is constrained by Uber. This is done by monitoring the driver’s rate of acceptance and too many requests declined or cancelled is an automatic logging off for the driver for 10 minutes, preventing the driver from working until they can log back on.
Uber exercises control over the way in which the drivers deliver their services e.g. via the ratings system. Any driver who fails to maintain the required average rating will receive a series of warnings and if they do not improve then their relationship with Uber is terminated.
Uber (in order to protect their business) restricts communications between the passenger and driver to the minimum necessary to perform the trip. It takes active steps to prevent drivers from establishing relationships with passengers capable of extending beyond the individual trip.
So, the drivers are in a position of subordination and dependency and with no ability to improve their economic position through professional or entrepreneurial skill. Contrast this with a self-employed person or a Gigger.
Uber wanted to claim they were merely an agent introducing the car and driver to the punter. Obviously, they were much more than that.
The definition of worker in the Employment Rights Act includes work under a Contract “whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual”. Here the professional business is carried on by Uber and Uber in these cases took 20% of the fare. It is a great business model.
So why do Uber drivers become just ‘workers’ and not employees?
Basically, it is because they don’t have to turn up for work. In a typical employee relationship, it is the employer who engages the employee to come into work on specific days and there is an overarching Contract of Employment which means when they stop work on one day, they are bound to come into work on another day. Here there is not the connection or compulsion between the working days and the time worked. If that existed, then the Uber drivers could claim they were employees and they would get even more rights than they have now been allowed.
The rights they get are essentially a right to the minimum wage and a right to paid holiday. That may be difficult and certainly expensive given that the Justices have decided that Uber drivers are working as soon as they log on rather than carrying a fare.
Although it is a good business model for Uber; seeing this coming in their May 2019 $82bn float the prospectus included 48 pages of “risk factors”. High on the list was a warning that “should the company be required to classify drivers as employees – or as workers – we would incur significant additional expenses” …. “Any such reclassification would require us to fundamentally change our business model and consequently have an adverse effect on our business and financial condition”.
Currently Uber are saying that this Judgment only applies to the 30 or so workers who brought the case. However, there were 40,000 Uber drivers on their books in 2016 and so one can expect that there will be many more thousands that will follow. There are an estimated 5m workers in the UK working in this kind of gig environment. However, many of those businesses have adjusted over time and continue to do so whereas Uber seem to have been particularly stubborn.
We have the gigger / truly self-employed, we have the worker, and we have the employee. Employees of course have many more rights including the right not to be unfairly dismissed after a period of time, rights in relation to redundancy, notice periods etc. Compensatory rights when certain action is taken.
Agency workers supplied by an Employment Agency to an organisation can also acquire some “worker like” rights. That is one for another day but one thing is for sure; over time as a society we are gradually and adjusting the control by bestowing more rights on those who work for a living
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