The Uber Case [2017] and Worker Status

Employment law recognises three types of working individual for employment status, which are;

  1. An Employee
  2. A worker (Limb b)
  3. A self-employed contractor

These categories are very important because it is your employment status that determines your statutory rights at work. Employee’s have all the rights in the Employment Rights Act 1996 (ERA 1996), workers have a few and self-employed individuals have none.

In Clyde and Co LLP v Bates van Winkelhof, the Supreme Court said that the law recognises two types of self-employed people. The first type are micro-entrepreneurs or professionals contracting directly with clients or customers. The second type, who are called (Limb b) workers, carry out their work as part of someone else’s business rather than their own, and as such are entitled to a number of employment rights.  The Uber case is about Limb (b) worker status.

Workers cannot claim unfair dismissal but have rights in relation to;

  • unlawful deductions from wages
  • whistleblowing
  • the right to be accompanied
  • the national minimum wage
  • working hours
  • paid holiday
  • part-time working
  • certain rights relating to trade union membership
  • pension auto-enrolment
  • discrimination

Businesses like Uber, Addison Lee, Citysprint and Pimlico Plumbers say that the Uber driver driver runs his own transportation services business, the Addison Lee driver runs his own taxi service, the Citysprint Courier rans her own courier service and the Pimlico Plumber runs his own plumbing business, so their employment status is in the third category of self-employed contractor, and not employee or worker. They are therefore not entitled to any employment rights.  Not one of them has won that argument in court. It hasn’t stopped Pimlico Plumbers or Uber though, who are appealing their decisions to the Supreme Court.


The Uber Employment Tribunal Decision

In the Employment Tribunal (ET) Uber argued that the drivers were not entitled to worker rights because it is just a technology company not a taxi provider, and Uber drivers do not work for Uber but instead work for themselves as self-employed business men and women. The ET disagreed with Uber and agreed with Mr Aslam and Mr Farrar that they were not self-employed but were Limb(b) workers and entitled to statutory workers rights.

Read the Employment Tribunal Case here.


The Employment Appeal Tribunal Decision

Unhappy with the ET decision, Uber appealed to the Employment Appeal Tribunal (EAT), arguing that the ET had got it wrong and that it was in fact acting as agent for the drivers. This case is the first and largest of the cases to be brought in relation to those who participate in the ‘gig economy’. Uber is appealing to the Supreme Court.

The Decision

The EAT dismissed Ubers appeal on all grounds. The judge said that when it comes to contracts, case law is clear that the ET must look at the reality of the work situation rather than what is said in the contract. The reality was that despite what the contracts said, the drivers were incorporated into the Uber business of providing transportation services, subject to arrangements and controls that did not point to a direct contractual relationship with the passenger every time and therefore, the drivers were not working in business on their own account.  The EAT said that the true agreement between Uber and the drivers had been considered, and rejected the label given by Uber that they were simply an agency.

Other arguments were that the ET should not have relied on regulatory requirements. Uber said that the ET had made a number of internally inconsistent and perverse findings of fact including the fact that the drivers were required to work for Uber. Further, Uber said that the ET had failed to take into account relevant matters relied on by Uber as being inconsistent with worker status and which in fact strongly suggested they were in business on their own account.

The EAT said that when carrying out its assessment the ET was entitled to look at the whole factual matrix and in considering its findings it was important to look at the judgment as a whole and in doing so it was clear there was nothing inconsistent or perverse. The ET was entitled to conclude that there were obligations upon Uber drivers that they should accept trips offered by Uber and that they should not cancel trips once accepted and be penalised if they did not. There was also nothing wrong with the tribunal’s conclusion that to be ‘working’ the drivers had to be in the relevant territory, with the app switched on and be able to accept assignments as this helped with the assessment of working time obligations and indeed was entirely consistent with Uber’s own description of a driver’s obligation when ‘on duty’.

Read the Employment Appeal Tribunal judgement here

Additional Resources

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