Addison Lee Ltd v Lange & Ors

The Court of Appeal refused permission to appeal from the EAT and ET findings that the three claimant drivers were "limb (b) workers" for the purposes of section 230(3)(b) of the Employment Rights Act 1996 and the related provisions of the Working Time Regulations 1998 and the National Minimum Wage Act 1998. The Employment Tribunal had found either (a) an overarching contract between each driver and Addison Lee, or (b) alternatively that each time a driver logged on to the company XDA system he undertook to accept jobs and to perform driving services personally; the EAT upheld both bases.

The court treated the Supreme Court's unanimous decision in Uber v Aslam, which reaffirmed the Autoclenz approach to disregarding contractual wording inconsistent with reality, as removing any real prospect of success for Addison Lee's appeal. The court also held that the ET's factual findings that logged-on periods were times when drivers were at the employer's disposal for Working Time Regulations purposes were properly open on the evidence and unaffected by later CJEU authority invoked by the appellant.

Background and procedural history

• An Employment Tribunal (25 September 2017) found that three drivers were "limb (b) workers" and that periods when they were logged on to Addison Lee's driver portal constituted working time for pay and holiday/NMW purposes.
• Addison Lee appealed to the Employment Appeal Tribunal, which dismissed the appeal (judgment 14 November 2018, sealed 21 November 2018).
• Permission to appeal to the Court of Appeal was initially given but was set aside for an oral hearing after the Supreme Court decided Uber v Aslam on 19 February 2021; the Court of Appeal refused permission to appeal on 22 April 2021.

Facts and nature of the claim

• The claimants were drivers who used Addison Lee branded vehicles and an XDA handheld to log on to the company's dispatch system. The driver contract contained clauses stating there was no obligation to provide services or to be provided with work, yet the ET found operational features (required checks, hire agreements, vehicle livery, monitoring, sanctions for unallocation and the obligation to accept jobs when logged on) that showed a contractual reality inconsistent with certain written terms.
• The claimants sought declarations and entitlements under employment and related legislation based on worker status, working time and minimum wage.

Issues framed

• Whether, as a matter of law and fact, the drivers were "limb (b) workers" under s.230(3)(b) ERA 1996.
• Whether there was an overarching contract between each driver and Addison Lee or, alternatively, whether each logged-on period generated a contractual undertaking to perform services personally.
• Whether time logged on to the XDA amounted to working time for the purposes of the Working Time Regulations and related pay obligations.

Court's reasoning and subsidiary findings

• The ET found both an implied overarching contract and, alternatively, that whenever a driver logged on he undertook to accept jobs and to perform services personally; the EAT upheld both findings.
• The Court of Appeal treated the Supreme Court's decision in Uber v Aslam and the Autoclenz principle as decisive: contractual terms inconsistent with the reality of the relationship can be disregarded when interpreting statutory worker definitions. That made it unrealistic to overturn the ET/EAT findings here.
• On working time, the ET's factual findings that logged-on periods placed drivers at the employer's disposal were properly open on the evidence; a subsequent CJEU decision cited by the appellant did not undermine that conclusion.

Wider comment: the court observed there was no compelling reason to allow the appeal to proceed in light of the Supreme Court's treatment of analogous factual and legal issues in Uber v Aslam.

Permission to appeal was refused. The court reasoned that the Employment Tribunal's factual findings — that there was either an overarching contract or that each logged-on period created a contractual undertaking to accept work personally — were open on the evidence and consistent with the Supreme Court's reasoning in Uber v Aslam and the Autoclenz principle, so there was no real prospect of success in overturning those findings; the ET's conclusion on logged-on time being working time was also properly supported by the findings of fact.

Employment Tribunal decision 25 September 2017 (found claimants were limb (b) workers and that logged-on time was working time); Employment Appeal Tribunal dismissed Addison Lee's appeal (judgment 14 November 2018, sealed 21 November 2018); permission to appeal to the Court of Appeal was initially granted and subsequently set aside for oral renewal in light of the Supreme Court's decision in Uber v Aslam (Supreme Court judgment 19 February 2021); Court of Appeal refused permission to appeal on 22 April 2021.