Uber Landmark UK Case – How Will This Impact Uber Australia

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The recent UK Employment Tribunal decision of Aslam, Farrar & Others v Uber B.V, Uber London Ltd & Uber Britannia Ltd made on the 28th  October 2016, ruled in favour of two former drivers who sought to establish their status as ‘workers’. The case was backed by the GMB trade union following complaints that Uber disregarded basic employment rights of its drivers.

Facts

Uber argued that its drivers were independent contractors who were capable of choosing when and where they worked, insisting that Uber was a technology company facilitating independent drivers as opposed to being a traditional taxi company.

Under legislation, a distinction is made between employees, self-employed contractors and ‘limb’ workers who are neither employers nor running a business either. This distinction is important as workers are entitled to a number of employment protections which were specific rights claimed in this case, such as the National Minimum Wage and paid holidays under the UK legislation.

Decision

The Employment Tribunal ruled that any driver who:

  1. Has their Uber App switched on;
  2. Is within the territory authorised to work; and
  3. Is able and willing to accept an assignment

is classified as a ‘worker’ for Uber under the contract.

The Tribunal made it clear that the label placed upon the parties’ arrangement was not a determining factor and did not accurately reflect the reality of the entire situation. Rather, the proposition made by Uber of 30,000 Uber drivers running small businesses linked by a common ‘platform’ was rejected. The Tribunal held that the drivers did not market themselves to the world in general, but were recruited as integral components of Uber in a dependent work relationship.

In the Tribunal’s opinion, it was “unreal to deny that Uber is in business as a supplier of transportation services.” They agreed with the decision by the North California District Court in Douglas O’Connor v Uber Technologies Inc, C.A. No.13-03826-EMC that stated “Uber does not simply sell software: it sells rides. Uber is no more a ‘technology company’ than Yellow Cab is a ‘technology company’ because it uses CB radios to dispatch Taxi Cabs.”

The Tribunal decided the only sensible interpretation of the working relationship is that the Uber drivers work for Uber by offering their skilled labour through which the organisation delivers its services and earns profits. They based their assessment on the following factors:

  • The discrepancy in the contract terms between Uber proposing to be the driver’s agent and Uber’s assertion of sole discretion to accept or decline bookings;
  • The fact that Uber interviews and recruits drivers;
  • The fact that Uber controls the key information to the exclusion of the driver;
  • The fact that Uber sets the default route and the driver can depart from it at his/her own peril;
  • The fact that Uber fixes the fare and the driver cannot agree to a higher sum;
  • The fact that Uber imposes numerous conditions on the drivers, instructs drivers as to how to work, controls their performance and gives them limited choice of acceptable vehicles;
  • The fact that Uber subjects its drivers to the rating system which can result in disciplinary procedure or performance management;
  • The fact that Uber accepts the risk of loss;
  • The fact that Uber handles complaints by passengers including complaints about drivers; and
  • The fact Uber retains the power to unilaterally amend the driver’s terms.

The Tribunal concluded that the drivers were working for Uber the moment they accepted a trip, from which point they are bound to complete the trip and required to undertake essential work for the delivery and service to the passenger.

Lessons

The tribunal’s decision provides a warning for companies who operate and engage work through Apps, a trend which has significantly increased over the past years.

This decision now paves the way for those working for Uber and other companies with a similar business model, to secure their employee rights.

Uber now faces the funding of employee benefits such as holiday pay, sick pay and superannuation  contributions for its drivers. With the recent legalisation of Uber in most Australian states, it is only a matter of time before this decision will inevitably be tested within the Australian courts and jurisdiction.