Uber – Who’s Now Being Taken for a Ride?

You will undoubtedly be aware by now that last month’s ruling by the EAT (upholding the Tribunal decision) stated that Uber drivers have been found to be workers, for the purposes of employment law rights in the UK, including under the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998.

The decision (in Uber BV v Aslam and ors), was based on the fact that when drivers had the ‘hailing’ app switched on, they had effectively indicated that they were “able and willing to accept assignments”, at which point they became subject to certain terms and conditions, laid down by Uber, including having to accept at least 80% of trip requests and to being penalised for cancelling any trip once having accepted it.

Uber’s argument, which it still maintains is that it provides a platform for willing parties to contract, such that a customer is transported to a given destination. So was Uber simply a facilitator between driver and passenger, or was it part of a sinister new era of exploitation?

Much has been said about the ‘Uberfication’ of Britain and the need to fight for workers’ rights in the burgeoning gig economy of short-term contracts and freelance work. In fact, Uber is not alone in being brought to task. London firm Pimlico Plumbers is currently fighting a tribunal decision that found in favour of a plumber who claimed the same rights as those sought by the Uber’s drivers. Then there’s the restaurant delivery app Deliveroo, which is also under scrutiny over its business model.

App-based companies like Uber and Deliveroo certainly have their detractors, but they also have their fans. Customers like to be able to see exactly where their next meal or ride home is coming from and how many minutes until it arrives. Uber claims that drivers choose to work through the app because it gives them the opportunity to decide when and where they drive, when to log on etc. Essentially, Uber is claiming that it is a matter of choice and freedom.

Uber may have lost its appeal but the war rages on. Speaking after the latest ruling, Uber’s acting general manager Tom Elvidge insisted that the practice of taxi drivers being self-employed has been around for a lot longer than Uber has. We understand that changes have been made to the app, which now give drivers greater control and at least according to Elvidge, further improvements are planned. Simplifying lives seems to be very complicated!

Since the EAT ruling, not only did Uber make clear that it wished to appeal, but it applied to ‘leapfrog’ its appeal to the Supreme Court (ie miss out the court of appeal), something agreed to on only very rare occasions and for extremely important cases. That application has been refused, such that the appeal will now be heard by the Court of Appeal sometime in 2018.

Meanwhile, the Pimlico Plumbers case on worker status is due to be heard by the Supreme Court in February 2018, which will give the Supreme Court an opportunity to review worker status (albeit not in the context of the ‘gig’ economy) very soon.