Addison Lee Ltd v Lange & Ors

For limb (b) worker status, the absence of an obligation to work at all times or for minimum hours is not decisive. The question is whether the relationship involved a contractual undertaking to perform work personally when the driver logged on, assessed objectively and against the factual reality. Contractual terms that do not reflect that reality may be disregarded. Logged-on periods may constitute working time where the driver is working, at the employer’s disposal and carrying out activities or duties, even if no passenger is being transported. A later Supreme Court decision confirming these principles may justify refusing permission for a further appeal where the proposed grounds have no real prospect of success.

Three drivers brought claims against Addison Lee. An employment tribunal held that they were limb (b) workers under section 230(3)(b) of the Employment Rights Act 1996 and that time logged on to the company’s system was working time, subject to breaks. The Employment Appeal Tribunal dismissed Addison Lee’s appeal in UKEAT/037/18/BA.

The Court of Appeal had previously granted permission, pending the Supreme Court’s decision in Uber v Aslam. Following that decision, the court reconsidered whether Addison Lee’s proposed appeal had a real prospect of success. The issues concerned worker status, the effect of the written contract, and whether logged-on periods satisfied the working-time definition.

1. Permission and disposition. The court set aside its earlier grant of permission under rule 52.18(1)(b) of the Civil Procedure Rules 1998 and directed an oral permission hearing. A subsequent Supreme Court decision showing that a proposed appeal has no real prospect of success is a compelling reason for taking that course. Permission to appeal was refused.
2. Worker status. The statutory inquiry concerned the factual reality of the relationship. Following the principle in Autoclenz v Belcher [2011] ICR 1157, contractual terms inconsistent with reality could be disregarded. The absence of any obligation to work at particular times or for minimum hours was not fatal. Each time a driver logged on, there was a contractual agreement in force. The findings that drivers had to accept jobs offered through the system and perform the driving services personally were findings of fact properly open to the employment tribunal. The alternative basis for worker status therefore provided no arguable error of law.
3. Working time. Under regulation 2(1) of the Working Time Regulations 1998, drivers logged on and not notifying the company that they were taking a break were working, at the company’s disposal and carrying out their activities or duties. Waiting for passengers, travelling home while still logged on, or undertaking personal activity did not necessarily remove them from the company’s disposal. Break periods were different in character and could fall outside the tripartite definition.
4. The CJEU decision in DJ v Radio Televizija Slovenija was not innovative and did not cast doubt on the working-time conclusion. The reasoning was also consistent with Federacion de Servicios Privados v Tyco Integrated Security [2015] ICR 1159. The Employment Appeal Tribunal’s decision remained undisturbed.

1. Employment tribunal: On 25 September 2017, the tribunal held that the drivers were limb (b) workers under section 230(3)(b) of the Employment Rights Act 1996 and that logged-on periods were working time, subject to breaks.
2. Employment Appeal Tribunal: On 14 November 2018, sealed on 21 November 2018, the EAT dismissed Addison Lee’s appeal in UKEAT/037/18/BA.
3. Court of Appeal (Civil Division): After the Supreme Court’s decision in Uber v Aslam, the court set aside its earlier grant of permission, held an oral hearing on permission, and refused permission to appeal.