The decision of Employment Tribunal in Aslam and Farrar and others v Uber BV, Uber London Ltd and Uber Britannia Ltd (2202550/2015) has attracted far reaching attention for a number of reasons.
Firstly, it involves exciting, still relatively new app technology, at a time when it is estimated that nearly 80% of Britons carry a smartphone. The context is the bitter internecine cab war, so familiar to anyone tuned to the broadcast media in Britain’s cities. Finally, it raises an important question of employment law in a novel and evolving environment.
This was a first instance, preliminary ET decision. As such, it is of persuasive but not binding authority on other Tribunals, assuming there will be similar relationships to be tested. It also means that the losing side, Uber, has yet to exercise the right of appeal that it seems likely to pursue. A great deal of thought and bandwidth may therefore be wasted on the result ‘so far’.
Mr Aslam and Mr Farrar were put forward by the GMB unions in a test case for 40,000 individuals currently operating as Uber drivers, of which ¾ are based in London. Harnessing GPS and smartphone technology, a putative passenger and a nearby driver are introduced, the driver then taking the passenger to his destination often at a far lower fare than that which a black cab might have cost, if one had been found.
Uber contended that the drivers were running their own businesses, keeping their own accounts and declaring their own taxes. As such they were third party contractors without any employment relationship or rights against them. It considers itself to be a technology platform rather than a transportation company, albeit that the UK companies own PSV licences under which the individual drivers operated.
The drivers contended that they were workers and as such entitled to rights under the National Minimum Wage Act 1998 and the Working Time Regulations 1998 which afforded them paid leave.
“The notion”, said the Tribunal, “that Uber in London is a mosaic of 30,000 small businesses linked by a common platform is to our minds faintly ridiculous”; “simple common sense argues to the contrary”.
The evidence of Uber’s Regional General Manager Joanna Bertram was belittled as ‘grimly loyal’, reminding the Tribunal of Queen Gertrude in Hamlet who ‘doth protest too much’.
Uber had argued that any relevant contract arose between the passenger and the driver, since Uber was merely providing technology to facilitate that. However the Tribunal considered this absurd because by the time any driver meets his passenger the deal has already been struck between Uber and the passenger (and not by the driver). Uber was responsible for recruiting drivers, it held key information about both parties and controlled their ability to accept or decline fares, it ran an earnings guarantee scheme, a complaints procedures, and imposed conditions as to routing and rebates. The written terms provided to passengers described the UK companies as the drivers’ agents, and asserted a right that it retained to accept or decline bookings.
There was additionally a jurisdictional question as to whether, if there was a relationship, it was with the parent company in Holland, which might not be amenable to the Tribunal’s jurisdiction. However the Tribunal also rejected this as a further distortion of what it considered to be the true position, that the domestic companies held licences to run private hire businesses and that the drivers were part of the organisation through which they did so.
Whilst unable to conclude at this stage what time exactly constituted working time, and how much holiday time might be due in these cases, the Tribunal concluded as a preliminary issue that the drivers were workers and that the various Regulations were engaged.
Uber is something of a phenomenon in its field. Whilst it might be an archetype of the so-called gig economy, it is less certain at least at this stage that there will be many in parallel circumstances who will feel the chill of this decision on their backs. However this is a fast growing part of the economy with 60% of self-employed people working in the transportation or storage, and many more in the low paid food and cleaning industries. Their entitlement to minimum wage and to paid leave matters a great deal, and if they are arms’ reach third party contractors running their own businesses, they would have no such rights.
Uber continues to argue that this decision may lead to price increases and in practice deny individuals the freedom to ‘be their own boss’, working where and when they wish and, they say, typically earning twice the minimum hourly wage. However the reasoning in the judgment is comprehensive and Uber will no doubt balance carefully the prospects, costs and risks of any appeal.
Graeme Kirk / 31st Oct 2016
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