Uber B.v (“UBV”) v Yaseen Aslam

Hearing dates: 30–31 October 2018

Approved Judgment

Sir Terence Etherton MR and

Introduction

In the words of the employment tribunal (“the ET”), from whose decision this appeal is brought, “Uber is a modern business phenomenon”. It was founded in the United States in 2009 and its smartphone app, the essential tool through which the enterprise operates (“the App”), was released the following year. At the time of the ET hearing in 2016 there were about 30,000 Uber drivers operating in the London area, and 40,000 in the UK as a whole. The organisation has some 2 million passengers registered to use its services in London.

The Claimants are current or former Uber drivers working in London.

The first Appellant, Uber BV (“UBV”), is a Dutch corporation and the parent company of the second and third Appellants. It holds the intellectual property rights in the App.

The second Appellant, Uber London Limited (“ULL”), is a UK registered company which, since May 2012, has held a Private Hire Vehicle (“PHV”) Operator Licence pursuant to the Private Hire Vehicles (London) Act 1998 and the regulations made under it. Its functions include making provision for the invitation and acceptance of PHV bookings and accepting such bookings.

The third Appellant, Uber Britannia Limited, holds or manages PHV Operator Licences issued by various local authorities outside London. It was named in the claim form in this case but its activities did not feature in the evidence in the ET nor in the argument before us.

The claims brought before the ET were under the Employment Rights Act 1996 (“ ERA”), read with the National Minimum Wage Act 1998 (“NMWA”) and associated Regulations, for failure to pay the minimum wage and under the Working Time Regulations 1998 (“WTR”) for failure to provide paid leave. Two claimants, including Mr Aslam, also complained under Parts IVA and V of the ERA of detrimental treatment on “whistleblowing” grounds.

In their response form the Appellants, to whom we will refer collectively as “Uber”, denied that the Claimants were at any material time “workers” entitled to the protection of the legislation on which they relied. In addition, they raised jurisdictional defences based on applicable law and forum points.

The ET held a public preliminary hearing to determine the status and jurisdiction issues before Employment Judge Snelson and two lay members beginning on 19 July 2016. Thomas Linden QC appeared for the Claimants and David Reade QC for Uber. Oral evidence was heard from Mr Aslam and Mr Farrar, the First and Second Claimants, and, on behalf of Uber, from Ms Joanna Bertram, Uber's Regional General Manager for the UK, Ireland and the Nordic Countries.

The ET summarised the principal issues before them at the preliminary hearing in terms taken from Mr Linden's closing submissions:-

“The core issue remains as to whether the claimants are “workers” for the purposes of the various definitions under the domestic legislation. There are also conflict of laws issues, but these have narrowed substantially.

a) Uber now accepts that the Tribunal has jurisdiction in respect of all of the respondents, i.e. that it is competent (in the international jurisdiction sense) to adjudicate the claims against all of the respondents including UBV.

b) They also accept that the WTR apply to the claimants provided they are workers as defined;

c) They also accept that the ERA and the NMWA would apply to any claim against ULL provided they are workers.

d) But they say that the ERA and NMWA do not apply to any contract with UBV – Dutch law applies such that the claimants do not have any protection under UK employment legislation.”

If the claimants are “workers”, the Tribunal is then asked to determine, in principle, what counts as work and/or working time for the purposes of the WTR and the national minimum wage legislation.”

The ET decided that:-

a) English law applied;

b) The Claimants were “employed” by ULL as “workers” within the meaning of section 230(3)(b) of the ERA 1996, the Working Time Regulations and the NMWA;

c) The working time of each of the Claimants started as soon as he was within his “territory” (London), had the App switched on and was ready and willing to accept trips, and ended as soon as any of those three conditions ceased to apply;

d) For the purposes of the National Minimum Wage Regulations 2015 the Claimants were engaged in “unmeasured work”.

The first and last of these rulings were not the subject of argument before us. “Taking an Uber”

The ET made the following findings which were not in dispute before us:-

“15. The Uber system works in this way. Fare-paying passengers must be aged 18 or over. They register by providing certain personal information including credit or debit card details. They can then book a trip by downloading the App on to their smartphones and logging on. They are not obliged to state their destination when booking but generally do so. They may, if they request, receive a fare estimate. Once a passenger request has been received, ULL locates from the pool of available drivers the one estimated by their equipment, which tracks drivers' movements, to be closest to the passenger and informs him (via his smartphone) of the request. At this stage the driver is told the passenger's first name and his/her rating. He then has 10 seconds in which to accept the trip. If he does not respond within that time he is assumed to be unavailable and another driver is located. Once a driver accepts, ULL confirms the booking to the passenger and allocates the trip to the driver. At this point the driver and passenger are put into direct telephone contact through the App, but this is done in such a way that neither has access to the telephone number of the other. The purpose is to enable them to communicate, for example to agree the precise location for pick-up, to advise of problems such as traffic delay and so forth. Drivers are strongly discouraged from asking passengers for the destination before pick-up.

16. The driver is not made aware of the destination until he has collected the passenger (he learns it from the passenger directly or, where the passenger has stated the destination to Uber, from the app, when he presses the ‘Start Trip’ button). The App incorporates software linked to satellite navigation technology, providing detailed directions to the destination. The driver is not bound to follow the route proposed and will not do so if the passenger stipulates a different route. But an unbidden departure from the App route may have adverse consequences for the driver (see below).

17. On arrival at the destination, the driver presses or swipes the ‘Complete Trip’ button on his smartphone. Assuming he remains logged on to the App, he is then eligible to be allocated further trips.

18. At the end of any trip, the fare is calculated by the Uber servers, based on GPS data from the driver's smartphone. The calculation takes account of time spent and distance covered. In ‘surge’ areas, where supply and demand are not in harmony, a multiplier is applied to fares resulting in a charge above the standard level.

19. Strictly speaking, the figure stipulated by Uber is a recommended fare only and it is open to drivers to agree lesser (but not greater) sums with passengers. But this practice is not encouraged and if a lower fare is agreed by the driver, UBV remains entitled to its ‘Service Fee’ (see below) calculated on the basis of the recommended amount.

20. The passenger pays the fare in full to UBV, by credit or debit card, and receives a receipt by email. Separately, UBV generates paperwork which has the appearance of being an invoice addressed to the passenger by the driver. The ‘invoice’ document does not show the full name or contact details of the passenger, just his or her first name. Nor is it sent to the passenger. He or she would no doubt be vexed to receive it, having already paid the fare in full to Uber and received a receipt. The relevant driver has access to it electronically through the App. It serves as a record of the trip undertaken and the fare charged, but

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24. Where a passenger cancels a trip more than five minutes after it has been accepted by a driver a £5 cancellation fee is payable. That fee is deemed a fare and accordingly UBV takes its customary percentage.”

The Rider Terms

The ET found as follows:

“28. Passengers logging on to the App are required to signal their acceptance of Uber's terms. The UK ‘Rider Terms’, updated on 16 June 2016, were shown to us. We assume that the document which they replaced was similar. Part 1 is entitled “Booking Services Terms”. Para 3 includes this:

Uber UK accepts PHV Bookings acting as disclosed agent for the Transportation Provider (as principal). Such acceptance by Uber UK as agent for the Transportation Provider gives rise to a contract for the provision to you of transportation services between you and the Transportation Provider (the “Transportation Contract”). For the avoidance of doubt: Uber UK does not itself provide transportation services and is not a Transportation Provider. Uber UK acts as...