In 2016, the UK Employment Tribunal (ET) declared that Uber drivers were ‘workers’ and therefore entitled to certain employment rights under UK law. This finding was recently confirmed by the UK Employment Appeals Tribunal (EAT). The decision threatens to disrupt the business model of Uber and other companies operating within the ‘gig economy’. It is, therefore, no surprise that Uber sought to appeal this decision.

Uber requested to bypass the Court of Appeal and appeal the decision directly to the Supreme Court. A “leapfrog” appeal to the Supreme Court is permitted in the UK provided certain conditions are met, for example, if there is a point of law of general public importance involved. 

Uber’s request was, however, denied, according to drivers’ union Independent Workers Union of Great Britain (IWGB). At present, the only recourse currently open to Uber is to appeal to the Court of Appeal. It has expressed its intention to do so. 

Uber drivers: Worker or Agency Arrangement?

The decision which was the subject of the request to the Supreme Court was that of the EAT in the case of Uber B.V. and Others v Mr Y Aslam and Others (UKEAT/0056/17/DA), which was handed down three weeks ago.

Uber had sought to have the original ET decision overturned contending that: 

• the ET had erred in its failure to consider the written agreements between the drivers, Uber and the customers which, Uber argued, were inconsistent with the existence of a worker relationship. Uber argued it was providing its service to the drivers as their agent; and
• the ET had failed to take into account matters which strongly indicated that Uber drivers were carrying on a business undertaking in their own account. 

Dismissing the appeal, the EAT held that the relationship could not be characterised by the written agreements. It found that the reality of the situation was that drivers were incorporated into Uber’s business.

The EAT agreed with the ET’s conclusion that there was a contract between Uber and its drivers whereby the drivers personally undertook work for Uber as part of its business. 

The EAT observed that Uber drivers were subject to arrangements and controls such as penalties for cancelling trips once accepted, a requirement to be in the relevant territory when switching on the app and being “able and willing to accept assignments”. 

These factors, it found, indicated that the drivers did not work on their own behalf in a direct contractual relationship with passengers.

The ‘Worker’ Status

Affording the ‘worker’ status to Uber drivers provides them with employment rights such as minimum wage entitlements, working time rights and holiday pay.

It is likely that the categorisation of Uber drivers as workers will have a significant effect on the business operations of Uber and of similar ‘gig economy’ companies. 

Under Irish law, the ‘worker’ category does not exist. The individual is either an employee or self- employed. 

It remains to be seen whether the WRC/Courts would classify workers operating within the gig economy as employees, thereby providing them with the full suite of employment rights. Each case will turn upon its own facts. If the WRC/Courts did not classify such workers as employees, no alternative protection exists.  

It has been suggested that a ‘worker’ category should be introduced in Ireland. If this hybrid status was introduced, it could afford those working in the gig economy some protection.

Contributed by Emma Lavin

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