Addison Lee Ltd v Lange

The Employment Appeal Tribunal confirmed that a person who, when logged on to a transport provider's dispatch system, objectively undertakes to accept allocated journeys is a "worker" for limb (b) purposes. The Tribunal held that time spent logged on (other than periods of break) meets the tripartite test for "working time" because the individual is working, at the employer's disposal and carrying out activities or duties. The correct approach is to test objectively what a reasonable observer would conclude about the parties' agreement, applying Autoclenz principles where written terms may not reflect reality.

The claimants were drivers engaged through the appellant's private hire system. The Employment Tribunal found they were limb (b) workers and that time logged on to the company's XDA system (other than breaks) was working time. The employer appealed both findings. The EAT heard argument on whether there was an overarching implied contract and whether logging on created an enforceable personal obligation to accept jobs. The Tribunal also addressed whether logged-on periods satisfied the Working Time Regulations' definition of working time. The central issues were worker status and the legal characterisation of logged-on time.

1. Outcome: The appeal is dismissed. The Employment Tribunal's decision that the drivers were limb (b) workers and that logged-on time (excluding breaks) was working time is upheld.
2. The EAT applied the objective test for limb (b) status. It asked what a reasonable observer, with the material facts, would conclude about the parties' agreement. The ET was entitled to find that, when logged on, drivers undertook to accept allocated jobs and therefore performed services personally (Autoclenz principles applied) (see paras [47]; [50]; [54]).
3. The ET could properly find that certain written clauses did not reflect the true agreement. In the employment context tribunals must be realistic and consider relative bargaining power when deciding whether written terms represent the real bargain (see paras [54]; discussion of Autoclenz).
4. The EAT rejected the appellant's contention that economic pressure alone cannot found an implied obligation. The ET identified additional indicia of obligation, including sanctions for refusal of jobs and operational rules, which supported a legal obligation to accept allocations (see paras [17]; [47]; [50]; [55]).
5. The EAT upheld the ET's alternative and dispositive finding that, even absent an overarching contract, the drivers were workers while logged on because they objectively undertook to accept jobs when logged on (paras [49]-[50]).
6. Working time: The EAT held that time logged on (excluding break periods) met the tripartite WTR definition—working, at employer's disposal, carrying out activities or duties—because availability while logged on formed an essential part of the service rendered (paras [57]; comparison with the ECJ reasoning in Federacion de Servicios Privados (Tyco) and supportive analysis in Uber BV v Aslam).
7. Practical guidance: Tribunals may look behind written labels to the factual substratum. Where the operational system, sanctions and mutual expectations create an objective obligation on the individual when logged on, that period can be treated as a contractual undertaking and as working time.
8. Order: Appeal dismissed. The ET's findings on limb (b) status and working time are upheld.

• Employment Appeal Tribunal dismissed the employer's appeal and upheld the Employment Tribunal's findings on worker status and working time (see [2018] UKEAT 0037_18_1411).
• Employment Tribunal (London Central) originally found the claimants to be limb (b) workers and that logged-on time (other than breaks) was working time (Judgment dated 25 September 2017) (referred to in the EAT Reasons).