The test of control at the heart of the Uber judgment
The press went mad when the Employment Tribunal judgment in the Uber case was released and since then I have heard many misquotes and myths. Firstly, as one huge press organisation wrongly stated, the Uber drivers were not found to be employees. They were in fact found to be workers. This is the middle ground and does not give them the holy grail of employment rights but gives them far more than Uber wanted them to have as they had maintained that the drivers were self-employed. As such, they would have had no rights other than governed by the contract between the parties.
Second point to note is that the case is very fact sensitive. Other well-known courier companies have faced claims from their drivers that they are workers or self-employed and, whilst these have slipped through more quietly, they have in the past been found to be self-employed.
The case really centres on the long-established test of control. The more control there is the more likely rights are to be established. Drivers were required to accept trips offered. Documentation showed that if they rejected more than 20% of those offered their account status would be reviewed and all trips were monitored. If a driver declined three trips in a row (this includes not responding within 10 seconds of the trip being offered to the Uber driver via the smartphone app) then they were forcibly logged off the app for 10 minutes. A similar penalty occurs if a driver cancels a trip after accepting it.
The app has mapping software that determines the route. Whilst the driver can divert from that route but if a passenger complains that the most efficient route was not followed the driver is then left to justify the route taken so this is another form of control. Passengers also rate the drivers using 0-5 and if a driver has poor reviews he is then subject to “quality interventions” akin to performance management and then his account can be removed. Drivers are also subject to warnings for conduct.
Other determining factors for the Tribunal were that Uber controls the key information (i.e. passenger details) and the driver has no access to it. Uber fixes the fare and the driver cannot agree a higher sum. Uber also determines issues around rebates to passengers often without reference to the drivers. Uber takes the risk if a passenger soils the cab, as it covers for this, and also handles complaints. It also reserves the right to amend terms and conditions unilaterally.
In addition, the Uber drivers had a requirement to personally perform the service. The right to use the app was non-transferable and drivers were not permitted to share accounts or user ID’s. There was no question of any driver bring substituted as you would expect in a self-employed contract. The drivers also underwent a screening and interview process. They are free to work elsewhere and must bear the costs of vehicle running expenses and the private hire licences. Drivers are free not to switch on the app at all.
The Tribunal accepted that when the app was switched off there could be no question of any contractual obligation to provide driving services. However, when the app was switched on and the driver is willing and able to accept fares, the driver is a worker.
This means that the Uber drivers, now classified as workers, gain a number of rights. The first is to 5.6 week’s annual leave under the Working Time Regulations, the other Working Time Rights such as daily and weekly rest periods and the right to receive the national minimum wage or national living wage when working. They also have protection to detriments from whistleblowing and other such protections. Needless to say, this decision was a huge blow to Uber who have said they will appeal so watch this space.
Disclaimer: Nothing in the Legal Insights section and this blog is intended to provide legal or other professional advice and, if readers are interested, they should consider taking separate legal or other professional advice accordingly.
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