Should you be “Uber” concerned?
The London Employment Tribunal (“ET”) handed down a “landmark decision” today, Friday 28 October 2016 in the case of Aslam, Farrar and others -v- Uber BV, Uber London Ltd and Uber Brittania Ltd. The ET confirmed that the Uber drivers were “workers” in respect of the “extended” employment related rights (applying to “workers” as well as to “employees”), which include rights under the Working Time Regulations regarding paid annual leave, rest breaks and limits on working time, rights under the National Minimum Wage legislation regarding minimum pay, as well as legislative provisions pertaining to pension entitlement and protection of the whistleblowing legislation.
This case considered the Uber business model, which allows the corporation to engage drivers through the use of a smartphone app. The ET concluded that despite the complicated contractual relations operated by Uber to “contract” with the “self-employed” drivers, the individuals were engaged as workers for the purposes of the extended employment related rights and were not “self-employed”. The ET decision was based on a number of factors, including the vetting of the drivers by Uber, Uber controlling the information it shared with the drivers regarding the fares the driver collected and Uber determining the manner in which the drivers could accept “trips”.
As a result, this decision, which will almost certainly be appealed, may have widespread ramifications to businesses engaged in the “gig” economy - those businesses operating on an “engage as needed” basis with a fluctuating contractor model to meet “customer” demand. Businesses which rely on individual contractors are urged to take advice now to ensure that their contractual arrangements, both in contract and in practice, do not fall foul of this decision in the meantime.