Uber BV v Aslam

The Court of Appeal dismissed Uber's appeal against findings that London drivers supplying services through the Uber app were "workers" within the meaning of section 230(3)(b) of the Employment Rights Act 1996 for the purposes of the ERA, the Working Time Regulations 1998 and the National Minimum Wage Act 1998. The court applied the Autoclenz approach: where written terms are standard, non-negotiable and inconsistent with the factual reality, tribunals may look to the reality of the relationship rather than be bound by contractual labels.

Key legal holdings and grounds:

• The Employment Tribunal's factual findings that drivers were recruited, controlled, managed and disciplined in ways consistent with being part of Uber's transport business were sustainable and supported the legal conclusion that the drivers provided services to Uber London Limited (ULL) rather than to passengers as independent principals.
• The statutory and regulatory context, notably ULL's role as the Private Hire Vehicle operator under the Private Hire Vehicles (London) Act 1998 and related regulations, reinforced the conclusion that drivers provided services to ULL.
• On timing, drivers were working for ULL whenever they were in their territory (London), had the App switched on and were ready and willing to accept assignments; alternatively, at the latest, they were working for ULL from the moment they accepted a trip until its completion.

The claimants were current or former Uber drivers in London who brought tribunal claims under the Employment Rights Act 1996 (limb (b) "worker" status), the National Minimum Wage Act 1998 and the Working Time Regulations 1998 for failure to pay the national minimum wage and to provide paid leave; two claimants also relied on whistleblowing protections. Uber contended that the drivers were self-employed and that contractual documentation (between drivers and Uber BV and between passengers and Uber) established that drivers contracted directly with passengers; Uber also raised conflict-of-law and forum points.

Procedural history:

• The Employment Tribunal (preliminary hearing, July 2016) found English law applied, that the claimants were limb (b) workers for ULL, and that working time ran from being in the territory with the App switched on and ready to accept trips until any of those conditions ceased.
• Judge Eady QC dismissed Uber's appeal to the Employment Appeal Tribunal (10 November 2017) applying Autoclenz and emphasising the need to determine the true bargain from all the circumstances.
• The Court of Appeal (this judgment) dismissed Uber's appeal and affirmed the ET and EAT conclusions.

Issues framed by the court:

1. Whether the claimants were "workers" within section 230(3)(b) ERA and corresponding definitions in the WTR and NMWA.
2. Which Uber entity (UBV, ULL or other) provided or received the services for the purposes of those definitions.
3. What periods counted as working time for WTR and national minimum wage purposes.
4. Whether the written contractual documentation could be treated as reflecting the true agreement or disregarded under Autoclenz.

Court’s reasoning (concise):

• The court applied Autoclenz and related authorities: written standard form terms placed on many drivers by a stronger party are evidence but not conclusive if they do not reflect the factual reality. Tribunals should take a realistic, worldly-wise approach to ascertain the true agreement.
• The tribunal’s factual findings — including recruitment and onboarding, control over information (e.g. passenger details and destination), setting of fares, route guidance, performance management via ratings, the power to deactivate, payment collection and complaint-handling, and ULL’s statutory role as PHV operator — supported the legal finding that drivers provided services to ULL rather than contracting with passengers as independent principals.
• The regulatory context (Private Hire Vehicles (London) Act 1998 and Operators Regulations) reinforced the conclusion that ULL acted as the operator and that drivers were integrated into a business run by ULL; this made Uber’s contractual characterisation implausible on the facts found by the ET.
• On timing, the ET was entitled to conclude that drivers were working for ULL while in the territory with the App on and ready/willing to accept work, and in any event from the moment of acceptance of a trip until its completion.

Subsidiary findings: the court accepted the ET and EAT’s rejection of the contention that UBV (the Dutch company) was the drivers’ employer; it accepted ULL as the relevant entity. The court distinguished Secret Hotels2 on its facts and treated Autoclenz as authoritative in the employment context.

Appeal dismissed. The Court of Appeal upheld the Employment Tribunal and Employment Appeal Tribunal findings that, on the facts found, drivers using the Uber App were limb (b) "workers" of Uber London Limited while in the territory with the App switched on and ready and willing to accept assignments (and at the latest from acceptance of a trip). The court applied Autoclenz to hold that standard-form contractual labels could be disregarded where they did not reflect reality and gave weight to the statutory/regulatory context and the ET’s factual findings.

Appeal from the Employment Tribunal (preliminary hearing July 2016) on status and jurisdiction issues. Employment Appeal Tribunal (Judge Eady QC) dismissed Uber's appeal (reserved judgment 10 November 2017; EAT reference UKEAT/0056/17/DA). Permission to appeal to the Court of Appeal was granted and this appeal was dismissed ([2018] EWCA Civ 2748).