Uber BV and others v Aslam and others

Whether an individual is a “worker” is primarily a question of statutory interpretation, not contractual classification. A tribunal must apply the statutory language purposively to the relationship as it operates in practice. Written terms are relevant evidence, but they are neither the starting point nor presumptively decisive, and terms designed to exclude statutory protection are void.

Worker status is indicated by subordination and dependency, with the putative employer’s control being an important touchstone. Control over remuneration, contractual terms, work allocation, performance and customer relationships may show that platform workers serve the platform rather than independent customers. Freedom to choose when to work does not prevent worker status while working. Logged-on waiting time may count as working time where the individual undertakes a minimum obligation to accept work and is at the employer’s disposal.

Uber BV and others v Aslam and others concerned private hire drivers whose trips were arranged through a smartphone application. The drivers claimed national minimum wage, paid annual leave and, in two cases, protection for whistleblowing. Uber contended that it merely supplied technology and booking services and that each driver worked independently under contracts with passengers.

The employment tribunal found that the test claimants worked for Uber London under workers’ contracts. It also found that they were working whenever they were logged into the application within their licensed territory and were ready and willing to accept trips. The Employment Appeal Tribunal dismissed Uber’s appeal, and a majority of the Court of Appeal dismissed a further appeal in [2018] EWCA Civ 2748.

The central issues before the Supreme Court were whether the tribunal was entitled to find that the drivers were “workers” under the Employment Rights Act 1996 and equivalent legislation, and, if so, during which periods they were working.

Lord Leggatt delivered the sole judgment. Lord Reed, Lord Hodge, Lady Arden, Lord Sales and Lord Hamblen agreed.

1. Disposition. The appeal was dismissed. The employment tribunal was entitled to find both that the claimants were workers for Uber London and that the relevant logged-on periods constituted working time.
2. Contractual and agency analysis. The written terms did not confer actual or apparent authority on Uber London to contract with passengers as the drivers’ agent. In the absence of such authority, Uber London accepted bookings as principal and necessarily contracted with drivers to perform them. The licensing context under the Private Hire Vehicles (London) Act 1998 supported that analysis, although the Court did not finally decide whether an agency model could ever comply with that regime.
3. Statutory worker status. Autoclenz Ltd v Belcher [2011] UKSC 41 established that ordinary contractual rules do not determine whether a person falls within protective employment legislation. The primary task is statutory interpretation. The tribunal must apply the statutory language purposively to the relationship viewed realistically, taking written terms into account without treating them as the starting point or as conclusive.
4. Contracting out. Provisions whose object is to prevent an individual from claiming statutory worker rights are void under section 203(1) of the Employment Rights Act 1996, section 49(1) of the National Minimum Wage Act 1998 and regulation 35(1) of the Working Time Regulations 1998. This applies to indirect exclusions, including contractual statements about the parties’ supposed legal relationship or the absence of control.
5. Control and dependency. The legislation protects people whose subordination or dependency makes them vulnerable to exploitation. Control is an important touchstone, although subordination is not a universal prerequisite. Uber fixed remuneration and contractual terms, constrained acceptance and cancellation of trips, controlled service delivery and performance through the application and ratings system, and prevented drivers from developing customer relationships. Taken together, those features left drivers little scope to improve their position through entrepreneurial skill and compelled the conclusion that they were workers.
6. Periods of work. Freedom to decide whether and when to work did not prevent worker status during an engagement. Logging on involved an irreducible minimum obligation to undertake some work because drivers were required to be generally willing to accept trips and faced coercive log-off penalties for repeated refusals.
7. Working time and minimum wage. Time logged into the application within the licensed territory while ready and willing to accept trips was working time under regulation 2(1) of the Working Time Regulations 1998. Whether simultaneous availability to competing operators alters that conclusion is a question of fact and degree. The tribunal was also entitled to classify the hours as residual “unmeasured work” under the National Minimum Wage Regulations 2015.

1. United Kingdom Supreme Court: In Uber BV and others v Aslam and others [2021] UKSC 5, the Court unanimously dismissed Uber’s appeal and affirmed both challenged conclusions.
2. Court of Appeal: The majority dismissed Uber’s appeal in [2018] EWCA Civ 2748. Underhill LJ dissented on worker status but agreed with the working-time conclusion if the drivers were workers.
3. Employment Appeal Tribunal: The appeal from the employment tribunal was dismissed. No citation is stated in the judgment.
4. Employment tribunal: The tribunal found that the test claimants worked for Uber London under workers’ contracts and were working while logged into the application within their licensed territory and ready and willing to accept trips.