Uber B.V. ("UBV") & Ors v Aslam & Ors

When determining whether an individual is a worker under section 230(3)(b) of the Employment Rights Act 1996, the tribunal must identify the parties’ true agreement from all the circumstances. Standard, non-negotiable documents do not conclusively determine the relationship, particularly where bargaining power is unequal.

Terms devised by the putative employer, including terms involving third parties, may be disregarded where they artificially characterise the practical relationship and would otherwise defeat statutory protection. A driver was a worker while within the authorised territory, logged into the platform and ready and willing to accept trips. Availability could cease to count where the driver was genuinely at another operator’s disposal.

Drivers brought claims for minimum wages, paid annual leave and, in two cases, whistleblowing detriment. Their entitlement depended principally upon whether they were workers under section 230(3)(b) of the Employment Rights Act 1996 and corresponding legislation.

The employment tribunal found that the drivers worked for Uber London Limited. It held that working time began when a driver was within the authorised territory, had the App switched on and was ready and willing to accept trips. The Employment Appeal Tribunal dismissed Uber’s appeal, holding that the tribunal had permissibly applied Autoclenz Ltd v Belcher [2011] UKSC 41 when identifying the true relationship.

Uber appealed. The central issues were whether the contractual documents precluded a contract between the drivers and Uber London Limited and, if not, when the drivers worked under that contract.

1. By a majority, the appeal was dismissed. Sir Terence Etherton MR and Bean LJ held that the employment tribunal was entitled, and correct, to find that the claimant drivers were limb (b) workers providing services to Uber London Limited.

2. In employment-status cases, the tribunal must determine the parties’ actual agreement from all the circumstances. Written terms are relevant but are not conclusive where they are standard, non-negotiable and imposed in an unequal bargaining relationship. Following Autoclenz Ltd v Belcher [2011] UKSC 41, tribunals should take a realistic, worldly-wise, sensible and robust approach. Terms generated by the putative employer may be disregarded where they do not reflect what occurs in practice. That principle also reaches artificial arrangements involving passenger contracts; otherwise statutory protection could be evaded through elaborate third-party structures.

3. Objectively assessed, a contract arose between the driver and Uber London Limited when the driver accepted a trip request. The driver then undertook to collect the passenger and complete the journey. The documents’ assertion that the driver contracted only with the passenger did not reflect the practical relationship. The driver did not know the destination when accepting the trip, while Uber London Limited communicated and received acceptance of the request. Any simultaneous passenger contract would not make Uber London Limited the client or customer of a business carried on by the driver.

4. The statutory private-hire regime strongly reinforced that conclusion. Uber London Limited alone held the operator licence and could accept bookings. The extensive control over recruitment, information, trip acceptance, cancellations, fares, ratings, complaints and unilateral contractual changes further showed that Uber operated the transportation business and the drivers supplied its skilled labour.

5. The tribunal was entitled to find that a driver worked while within the territory, logged into the App and ready and willing to accept trips. Maintaining a pool of available drivers was essential to the business, and acceptance expectations and temporary log-off sanctions supported the finding that waiting drivers were at Uber London Limited’s disposal. If a driver was genuinely also at another operator’s disposal, the same conclusion might not follow. At the latest, work began when a trip was accepted.

6. Underhill LJ dissented. He considered that Autoclenz permitted written terms to be disregarded only where they were inconsistent with the true agreement shown by actual practice. In his view the intermediary model was genuine, the drivers contracted with passengers, and the appeal should have been allowed. Had a contract with Uber London Limited existed, he would have treated it as beginning when a trip was accepted.

1. Court of Appeal (Civil Division): By a majority, dismissed Uber’s appeal and affirmed the finding that the claimant drivers were workers: [2018] EWCA Civ 2748.

2. Employment Appeal Tribunal: HHJ Eady QC dismissed the appeal from the employment tribunal. She held that the tribunal had permissibly identified the true relationship and had been entitled to find that drivers worked while within the territory, logged into the App and ready and willing to accept trips.

3. Employment tribunal: Held that English law applied; that the claimants were workers employed by Uber London Limited; and that their working time ran while they were within their territory, logged into the App and ready and willing to accept trips.