Uber has failed in its appeal to the Supreme Court, with the Court ruling that Uber drivers are workers.
Uber Appeal: Background
The background to the Uber appeal is a long one
In Uber BV and others v Aslam and others (2017), back on the 10th November 2017, the Employment Appeal Tribunal (EAT) upheld the decision at first instance in October 2016 that Uber drivers are workers.
Following its defeat at the EAT, Uber then appealed to the Court of Appeal, who heard the Uber appeal on the 30th October 2018. In its judgment, which was handed down on the 19th December 2018, the Court of Appeal upheld the decision of the EAT that Uber drivers are workers.
The Court of Appeal held that the "artificiality of the contractual documents" was such, that there was "a high degree of fiction in the wording (whether in the 2013 or the 2015 version) of the standard form agreement between UBV and each of the drivers.....For ULL to be stating to its statutory regulator that it is operating a private hire vehicle service in London, and is a fit and proper person to do so, while at the same time arguing in this litigation that it is merely an affiliate of a Dutch registered company which licenses tens of thousands of proprietors of small businesses to use its software, contributes to the air of contrivance and artificiality which pervades Uber’s case."
Following its loss at the Court of Appeal, Uber then appealed to the Supreme Court.
Supreme Court Decision In The Uber Appeal
The Uber appeal was heard by the Supreme Court on the 21st-22nd July 2020, with judgment being handed down on the 19th February 2021. The Supreme Court dismissed the Uber appeal, holding unanimously that Uber drivers are workers.
The judgment means that Ubers workers will now receive the national minimum wage, holiday pay, back pay in relation to the same, and entitlement to auto-enrolment into a pension scheme, as Uber has now exhausted the appeals process. Hence, the case will now revert back to the employment tribunal to determine the level of compensation
In its judgment, the Supreme Court were highly critical of the Uber contracts with their drivers, stating that they "can be seen to have as their object precluding a driver from claiming rights conferred on workers by the applicable legislation". Nevertheless, the Court concluded that the drivers are workers given the control exercised by Uber over the drivers, including laying down the terms and conditions of service, setting the fares, its ratings systems, the penalties it can impose on drivers, and the steps it takes to prevent drivers from entering into a direct contractual relationship with passengers outside of the Uber app.
Reaction
There has been a considerable amount of reaction to the outcome of the Uber appeal.
Uber’s regional general manager for northern and eastern Europe, Jamie Heywood, stated: "We respect the court’s decision which focused on a small number of drivers who used the Uber app in 2016. Since then we have made some significant changes to our business, guided by drivers every step of the way. These include giving even more control over how they earn and providing new protections like free insurance in case of sickness or injury. We are committed to doing more and will now consult with every active driver across the UK to understand the changes they want to see."
The co-lead claimant and App Drivers & Couriers Union General Secretary, James Farrar, stated: "This ruling will fundamentally re-order the gig economy and bring an end to rife exploitation of workers by means of algorithmic and contract trickery. Uber drivers are cruelly sold a false dream of endless flexibility and entrepreneurial freedom. The reality has been illegally low pay, dangerously long hours and intense digital surveillance. I am delighted that workers at last have some remedy because of this ruling, but the government must urgently strengthen the law so that gig workers may also have access to sick pay and protection from unfair dismissal." Â
Wider Ramifications
Despite losing the Uber appeal, Uber are arguing that this case "focused on a small number of drivers who used the Uber app in 2016" and is therefore distinguishable from the position of other Uber drivers. Hence, this may not be the end of the litigation. Indeed, the GMB have one case waiting to be heard by the EAT, and Nigel Mackay states on behalf of Leigh Day, who represent the Uber drivers, that: "Uber has consistently suggested that the rulings only affect two drivers, but Leigh Day will be claiming compensation on behalf of the thousands of drivers who have joined its claim."
Furthermore, this Uber case is just one of around 1000 cases to have been brought of this kind within the gig economy, with companies like Excel, Addison Lee, CitySprint, and eCourier also facing claims. Hence, the outcome of the Uber appeal has significant ramifications for the whole of the Gig Economy. With the floodgates having been opened, a huge number of claims and a considerable amount of litigation is likely to follow in the wake of the outcome of the Supreme Court's decision.
