The awaited judgement in Uber BV & Ors v Aslam & Ors [2021] UKSC 6 has been handed down and confirms that the Uber drivers were indeed workers. The Supreme Court considered the nature of the relationship which existed. Uber had argued that a contract was made directly between ‘rider’ and ‘driver’, and its mobile application only facilitated the transaction. The Court found no written contract existed, but highlighted its continued regard for Autoclenz Ltd v Belcher [2011] UKSC 41, highlighting that it need not matter if such a contract described the relationship as that of self-employment, if the real nature of the relationship conflicts with what is contained in the contract.
Finding in favour of the Respondents, the Supreme Court held that Uber had sufficient control of the fares drivers received, the terms of agreement between riders and drivers, the work which drivers could choose to accept or reject, the level of service the driver must give, which was tracked by a rating system, and finally Uber’s restriction of the ability for drivers and riders to communicate and engage outside of the Uber application ecosystem. As a result of these findings by the Supreme Court, it was found that there was a defined subordinate role, capable of amounting to drivers being ‘workers’. This gives entitlements to auto-enrolment to pension, national minimum wage, and other rights which has the potential to drive costs up for ‘gig’ economy businesses, and may require a re-wiring of business practices.
The issue of the period which amounted to ‘working time’ was also considered, and the Supreme Court upheld the finding of the employment tribunal which found that whilst the driver was logged into the Uber app and available to pick up passengers in the area, they are licensed to provide services, they are considered to be working. This has potential future consequences for employers, who may be forced to offer rest breaks, pay annual leave, and ensure workers are not working above usual legal limits.
The finding of the Supreme Court presents clear immediate need for many companies looking for clarity as to what the status of those who perform work for them is, and the flowing consequences this may have.
It must be stressed that whilst many some companies in the ‘gig’ economy operate with similar structures to that of Uber, they are not all identical, and as such any case will depend on its individual facts. Any individual claiming to be a worker or employee will still have to demonstrate that the company has suitable control over the individual, per Autoclenz. However, companies may wish to consider having a review conducted to consider current practices and the potential exposure which exists for suggesting that individuals may be ‘workers’ or ‘employ ees’.
Aside from the flowing rights of the workers in the Uber case, and the financial implications from minimum wage law and statutory annual leave and sick pay, a key consequence relates to tax liabilities. In Uber’s case, as the finding was that drivers provided services on Uber’s behalf, it gives rise to a claim that these services are transport services provided by Uber, for which Value Added Tax may be payable.
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