Did the tribunal disregard the basic principles of agency law when finding that Uber drivers were workers?
No, held the EAT in Uber BV v Aslam. The EAT agreed with the tribunal that when the Uber app was switched on, Uber drivers were workers for the purposes of their claims under the Employment Rights Act 1996, Working Time Regulations 1998 and National Minimum Wage Act 1998.
When drivers had the app switched on, they were obliged to be “able and willing to accept assignments”, were subject to a requirement that they “should accept at least 80% of trip requests”, and would suffer a penalty if they cancelled a trip once accepted. Those matters were indicative of a worker relationship and inconsistent with the contractual documentation or a suggestion that drivers were in business on their own account. Autoclenz Ltd v Belcher applied and the Tribunal had to “determine what was the true agreement between the parties”.
Uber could not rely on an argument that the arrangements indicative of worker status were merely required by the regulatory framework for private hire licensing. That framework did not require Uber to carry out the “interview and induction process (onboarding) it chose to operate”.
The tribunal was entitled to find that Uber London Limited was not acting as agent between the drivers and passengers. While there may be “gaps” when the drivers did not have the app switched on and were not workers for Uber London Limited, that was not “fatal to their status as ‘workers’ when they did”.
It is likely that Uber will appeal, and they may indeed seek a leapfrog appeal to the Supreme so this case can be heard at the same time as the Pimlico Plumbers case.
Thanks to David Leslie of Lyons Davidson for preparing this case summary.