Uber BV v Aslam

The Supreme Court dismissed Uber’s appeal and upheld the Employment Tribunal’s and Employment Appeal Tribunal’s conclusions that drivers who provide services through the Uber app qualified as "workers" for the purposes of the National Minimum Wage Act 1998, the Working Time Regulations 1998 and the Employment Rights Act 1996. The court applied a purposive approach to the statutory definition of a "worker": the characterization in standard-form written agreements drafted by the putative employer is not conclusive where the reality of the working relationship demonstrates subordination, control and dependence.

Material grounds:

• The licensing and regulatory context for private hire vehicles in London pointed to Uber London acting as the contracting principal for bookings rather than a mere agent for drivers.
• Contractual labels and terms drafted by Uber (including provisions that sought to characterise drivers as independent or to preclude statutory rights) could not determine status where, objectively, they had the effect of contracting out of protective legislation and were therefore ineffective.
• Applying Autoclenz and related authority, the tribunal was entitled to look beyond written terms and assess the reality of the relationship, focusing on control and dependency factors (fare-setting by Uber, app-directed allocation and routing, rating and deactivation systems, service fee deductions, restrictions on driver–passenger contact and other performance controls).
• On the facts found by the tribunal, drivers were working for Uber (specifically Uber London) when logged on to the app and available to accept trips in their licensed territory, and those logged-on periods could count as "working time" under the Working Time Regulations (subject to a factual inquiry about whether drivers were in practice also at the disposal of other operators).

Background and parties: The claimants were private hire vehicle drivers who provided trips booked through the Uber smartphone application. The appellants were Uber BV and its UK subsidiaries, including Uber London Ltd. The claimants sought statutory rights available to "workers": national minimum wage, paid annual leave and, for two claimants, whistleblowing protection under the Employment Rights Act 1996.

Procedural posture: The Employment Tribunal found the drivers were "workers" for Uber London and that they were working while logged on to the Uber app and available to accept trips. Appeals by Uber to the Employment Appeal Tribunal and the Court of Appeal failed (the Court of Appeal: [2018] EWCA Civ 2748). Uber appealed to the Supreme Court.

Issues for determination:

• Whether the drivers worked for an Uber company under "worker’s contracts" (limb (b) of the statutory definition) or instead worked for passengers under contracts made with passengers through Uber as agent.
• If drivers were workers for Uber, whether drivers were working for the purposes of the Working Time Regulations and the National Minimum Wage Regulations whenever they were logged into the Uber app, within their licensed territory, and available to accept trips, or only when carrying passengers (or from the moment of accepting a trip).

Reasoning and outcome: The court applied a purposive statutory approach (drawing on Autoclenz and Carmichael) and rejected an approach that treated the form of Uber’s written documentation as conclusive. The court emphasised the legislative purpose of protecting vulnerable and dependent persons and noted statutory prohibitions on contracting out of employment protections. The tribunal was entitled to find that Uber’s operation involved significant control over drivers’ remuneration, performance and the delivery of service (fare-setting and service-fee deduction; app allocation and routing; performance management via ratings and automatic log‑off; limitations on driver–passenger contact), and that drivers were economically dependent and subordinate in the way the platform organised work. The licensing and regulatory framework for London private hire services made it appropriate to treat Uber London as the contracting principal for bookings. Those findings supported the conclusion that drivers were "workers" and that time logged on and available to accept trips counted as working time for the relevant statutory schemes (subject to fact-specific considerations about whether drivers were simultaneously at the practical disposal of competitors). The Supreme Court dismissed Uber’s appeal and affirmed the tribunals’ decisions.

Appeal dismissed. The Supreme Court held that the employment tribunal was entitled to find that drivers supplying services via the Uber app were "workers" entitled to statutory protections. The court applied a purposive statutory approach (in line with Autoclenz and Carmichael), rejected giving decisive effect to written contractual labels that sought to exclude statutory protection or to recharacterise the relationship, and relied on objective facts showing control and dependency (fare-setting, app allocation and routing, ratings and deactivation systems, service-fee deductions, and restrictions on driver–passenger contacts). The court also considered the licensing regime for London private hire vehicles relevant to the contractual architecture and concluded the tribunal could properly find drivers were working for Uber London when logged on and available to accept trips, such time being capable of counting as working time under the Working Time Regulations.

Employment Tribunal (first instance) found drivers were 'workers' and that they worked whenever logged on, available and in territory; appeal to the Employment Appeal Tribunal dismissed; appeal to the Court of Appeal dismissed (majority) [2018] EWCA Civ 2748; appeal to the Supreme Court ([2021] UKSC 5) — appeal dismissed.