Uber drivers entitled to workers’ rights

The Supreme Court's decision in Uber BV v Aslam decided that drivers whose work is arranged through Uber's smartphone app are not independent contractors - with no employment protections as Uber argued - but ‘workers’ with statutory rights.  

Uber’s argument that a written contract between them and the drivers, and a separate contract between the drivers and the passengers meant they did not work for Uber - and instead worked for the passengers - was rejected.

This conclusion was based on the extent of control by Uber:

• Uber sets the fare via the app;
• Uber fixes the remuneration paid to drivers, who have no say in it;
• Uber decides the contract terms on which drivers perform their services with no input from the drivers;
• Once a driver has logged on, Uber exercises control over acceptance of requests for rides;
• Uber restricts communications between passenger and driver to the minimum necessary to perform the particular trip;
• Uber takes active steps to prevent drivers from establishing any relationship with a passenger capable of extending beyond an individual ride.

Ultimately, the drivers were dependent on Uber to the extent that that they had little opportunity to improve their economic position.

Workers’ statutory rights include the right to the national minimum wage, paid annual leave and not to be discriminated against on various protected grounds, and the decision goes beyond securing the rights of the individual Uber drivers.

The Supreme Court (SC) confirmed that in establishing whether an individual is a worker (entitled to statutory protections, for example) or not, does not depend on the terms of written agreements between the parties, rather this is an issue of statutory interpretation.

As a result of this case, tribunals will have regard to the purpose of a particular statutory provision and interpret its language, so far as possible, in such a way which best gives effect to that purpose.

The purpose of the legislation being addressed in Uber was to ‘protect vulnerable workers from being paid too little for the work they do, being required to work excessive hours or being subjected to other forms of unfair treatment (such as being victimised for whistleblowing).’

The SC’s view was that there was an inequality in bargaining power between the drivers and Uber. The SC’s concern was that the extent of control Uber had meant that they could exploit this inequality to their advantage in written terms to the individual’s disadvantage. Such disadvantage gave rise to the need for statutory protection in the first place, in order to protect the vulnerable. Uber, in the SC’s view, should not have been able to hold a trump card in determining whether or not protective legislation applied to the drivers.

This case causes real difficulties to gig economy employers trying to avoid worker status by way of written agreements. Further, legislation around workers’ and employees’ rights includes statutory restrictions preventing the waiver of such rights (except in very limited circumstances) and the SC’s view is that agreements drafted by employers seeking to exclude worker status will not be effective in the waiver of such rights.