The Supreme Court has now reached its decision on Uber’s appeal against the finding that its drivers were workers – and it’s not good news for the taxi app company.

Following several years of litigation in the tribunals and courts, the Supreme Court has agreed that the taxi firm’s drivers were, in fact, workers.

The original claim for worker status was initially lodged by two Uber drivers, who were subsequently accompanied in the proceedings by several other Uber drivers, all of whom were found to be workers by the Employment Tribunal in October 2016.  Uber asserted that these individuals were self employed contractors and appealed against this decision, both to the Employment Appeal Tribunal and the Court of Appeal, but in each case its appeal was unsuccessful.

Uber subsequently argued in its appeal to the Supreme Court that the written agreements between Uber, its drivers and passengers (which specified that its role was to provide technology services, act as a payment collection agent for its drivers and to act as a ‘booking agent’) had been disregarded.

The Supreme Court however disagreed, and held that the reality of the relationship between the parties should be examined, and should not be bound by what the documentation says.   To treat the terms of any written agreement as the starting point in determining whether an individual was a ‘worker’ would “reinstate the mischief which …. [employment] legislation was enacted to prevent”.   It was emphasised that employers are often in a position to dictate contract terms, and the fact that individuals performing the work have little or no ability to influence those terms is why employment laws to protect workers are needed in the first place.

Whilst the terms of any written agreement should not be ignored, there was no legal presumption that a contractual document contains the whole of the parties’ agreement, and no absolute rule that terms set out in a contractual document represent the parties’ true agreement just because an individual has signed it.

Emphasising five aspects of the Employment Tribunal’s findings, including the way drivers were paid to the way they delivered their services and were monitored on their acceptance of fares, the Supreme Court found that the Employment Tribunal was entitled to find that Uber drivers were ‘workers’ and not self-employed.  Specifically, the Judges commented that, in relation to the monitoring and issuing of penalties based on fare acceptances, Uber drivers were “in a position of subordination and dependency to Uber”.

During the course of the litigation, Uber had indicated that if its drivers were workers, it would count working time as time spent with passengers on journeys only. However in a further blow to Uber, the Supreme Court also agreed that its drivers were ‘working’ from the moment they switched on their app until they logged off again, provided that they were ‘ready and willing to accept trips’.

The Supreme Court’s decision is final, and will undoubtedly prove to be a very costly one for Uber.  The firm has suggested that the case concerned a small number of drivers and that since 2016 it has made “significant changes” to its business.   However, lawyers for some of the drivers concerned consider that the Supreme Court ruling applies to circa 90,000 drivers who have been active on the taxi app since 2016.

Whether this is the case or not remains to be seen.  In any event, it is now possible for any current or former Uber drivers not involved in the existing proceedings to bring claims against the firm and any such claims could run into thousands of pounds per driver, given that they are likely to include National Minimum Wage and holiday pay going back up to 6 years.  It has been reported that Leigh Day, who represented several of the Uber drivers, estimate that they may be owed an average of £12,000 each.

Uber is likely to have to treat its drivers as workers going forward or face further litigation.  This means not just in relation to wages and holiday and sick pay, but also in respect of other worker rights, including protection from discrimination, protection for whistleblowers, and in relation to working time.

The Supreme Court decision has large scale ramifications for the gig economy generally, with many commentators suggesting  that other businesses which operate in the same space as Uber, such as Deliveroo and Addison Lee, could be in the firing line next.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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