Uber BV v Aslam & Ors (JURISDICTIONAL POINTS - Worker, employee or neither : WORKING TIME REGULATIONS), Court of Appeal - United Kingdom Employment Appeal Tribunal, November 10, 2017, [2017] UKEAT 0056_17_1011

Resolution Date:November 10, 2017
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Uber BV v Aslam & Ors (JURISDICTIONAL POINTS - Worker, employee or neither : WORKING TIME REGULATIONS)
 
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Appeal No. UKEAT/0056/17/DA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 27 & 28 September 2017

Judgment handed down on 10 November 2017

Before

HER HONOUR JUDGE EADY QC

(SITTING ALONE)

(1) UBER B.V. APPELLANTS

(2) UBER LONDON LTD

(3) UBER BRITANNIA LTD

(1) MR Y ASLAM

(2) MR J FARRAR

(3) MR R DAWSON AND OTHERS RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

|For the Appellants |MS DINAH ROSE |

| |(One of Her Majesty’s Counsel) |

| |and |

| |MR FRASER CAMPBELL |

| |(of Counsel) |

| |Instructed by: |

| |DLA Piper UK LLP |

| |3 Noble Street |

| |London |

| |EC2V 7EE |

| | |

|For the First and Second Respondents |MR JASON GALBRAITH-MARTEN |

| |(One of Her Majesty’s Counsel) |

| |and |

| |MS SHERYN OMERI |

| |(of Counsel) |

| |Instructed by: |

| |Bates Wells and Braithwaite LLP |

| |10 Queen Street Place |

| |London |

| |EC4R 1BE |

| | |

|For the Third Respondents |No appearance or representation by or on behalf of the |

| |Third Respondents |

SUMMARY

JURISDICTIONAL POINTS - Worker, employee or neither

WORKING TIME REGULATIONS - Worker

“Worker status” - section 230(3)(b) Employment Rights Act 1996 (“ERA”), regulation 36(1) Working Time Regulations 1998 (“WTR”) and section 54(3) National Minimum Wage Act 1998 (“NMWA”).

“Working time” - regulation 2(1) WTR

The Claimants were current or former Uber drivers in the London area who, along with others, had brought various claims in the Employment Tribunal (“the ET”), which required them to be “workers” for the purposes of section 230(3)(b) Employment Rights Act 1996 (“ERA”), regulation 36(1) Working Time Regulations 1998 (“WTR”) and section 54(3) National Minimum Wage Act 1998 (“NMWA”). The ET concluded that any Uber driver who had the Uber app switched on, was within the territory in which they were authorised to work (here, London) and was able and willing to accept assignments was working for Uber London Ltd (“ULL”) under a “worker” contract and was, further, then engaged on working time for the purposes of regulation 2(1) WTR.

The Appellants (“Uber”) appealed, contending (relevantly) as follows:

(1) That the ET had erred in law in disregarding the written contractual documentation. There was no contract between the Claimants and ULL but there were written agreements between the drivers and Uber BV and riders, which were inconsistent with the existence of any worker relationship. Those agreements made clear, Uber drivers provided transportation services to riders; ULL (as was common within the mini-cab or private hire industry) provided its services to the drivers as their agent. In finding otherwise, the ET had disregarded the basic principles of agency law.

(2) The ET had further erred in relying on regulatory requirements as evidence of worker status.

(3) It had also made a number of internally inconsistent and perverse findings of fact in concluding that the Claimants were required to work for Uber.

(4) It had further failed to take into account relevant matters relied on by Uber as inconsistent with worker status and as, on the contrary, strongly indicating that the Claimants were carrying on a business undertaking on their own account.

Held: dismissing the appeal

The ET had been entitled to reject the characterisation of the relationship between Uber drivers and Uber, specifically ULL, in the written contractual documentation. It had found (applying Autoclenz Ltd v Belcher and Ors [2011] ICR 1157 SC(E)) that the reality of the situation was that the drivers were incorporated into the Uber business of providing transportation services, subject to arrangements and controls that pointed away from their working in business on their own account in a direct contractual relationship with the passenger each time they accepted a trip. Having thus determined the true nature of the parties’ bargain, the ET had permissibly rejected the label of agency used in the written contractual documentation. The ET had not thereby disregarded the principles of agency law but had been entitled to consider the true agreement between the parties was not one in which ULL acted as the drivers’ agent.

In carrying out its assessment in this regard, the ET was not obliged to disregard factors simply because they might be seen as arising from the relevant regulatory regime; that was part of the overall factual matrix the ET had to consider. In any event, in this case, the ET’s findings on control were not limited to matters arising merely as a result of regulation.

In considering the ET’s findings, it was necessary to have regard to its Judgment as a whole. Doing so, it was apparent that they were neither inconsistent nor perverse. In particular, the ET had permissibly concluded there were obligations upon Uber drivers that they should accept trips offered by ULL and that they should not cancel trips once accepted (there being potential penalties for doing so). It was, further, no objection that the ET’s approach required the drivers not only to be in the relevant territory, with the app switched on, but also to be “able and willing to accept assignments”; that was consistent with Uber’s own description of a driver’s obligation when “on-duty”. These findings had informed the ET’s conclusions not just on worker status but also on working time and as to the approach to be taken to their rights to minimum wage. Inevitably the assessment it had carried out was fact- and context-specific. To the extent that drivers, in between accepting trips for ULL, might hold themselves out as available to other PHV operators, the same analysis might not apply; hence the ET’s observation that it would be a matter of evidence in each case whether and for how long a driver remained ready and willing to accept trips for ULL.

HER HONOUR JUDGE EADY QC

Introduction

  1. This case arises from what has been described as a modern business phenomenon, commonly known simply as “Uber”. It was founded in the United States of America in 2009 and its smartphone app - the tool through which the business operates (“the app”) - was released in 2010. In its first instance decision, the Employment Tribunal (“the ET”) recorded how Uber’s then Chief Executive, Mr Kalanick, described the business in February 2016:

    “Uber began life as a black car service for 100 friends in San Francisco - everyone’s private driver. Today we’re a transportation network spanning 400 cities in 68 countries that delivers food and packages, as well as people, all at the push of a button. And … we’ve gone from a luxury, to an affordable luxury, to an everyday transportation option for millions of people.”

  2. There are around 30,000 Uber drivers in the London area (of some 40,000 in the United Kingdom) and about two million passengers there registered to use Uber’s services.

  3. These proceedings concern the employment status of the Claimants as Uber drivers in London. The London Central ET (Employment Judge Snelson and members Mr Pugh and Mr Buckley) held (relevantly) that Uber London Limited employed the Claimants as “workers”, as defined by section 230(3)(b) Employment Rights Act...

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