Uber B.v v Aslam

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Leggatt,Lord Reed,Lord Hodge,Lady Arden,Lord Sales,Lord Hamblen
Judgment Date19 Feb 2021
Neutral Citation[2021] UKSC 5

[2021] UKSC 5

Supreme Court

Hilary Term

On appeal from: [2018] EWCA Civ 2748

before

Lord Reed, President

Lord Hodge, Deputy President

Lady Arden

Lord Kitchin

Lord Sales

Lord Hamblen

Lord Leggatt

Uber BV and others
(Appellants)
and
Aslam and others
(Respondents)

Appellants

Dinah Rose QC

Fraser Campbell

(Instructed by DLA Piper (UK) LLP (London))

Respondents (1 and 2)

Jason Galbraith-Marten QC

Sheryn Omeri

(Instructed by Bates Wells & Braithwaite LLP (London))

Respondent (3)

Oliver Segal QC

Melanie Tether

(Instructed by Leigh Day (London))

Respondents:-

(1) Yaseen Aslam

(2) James Farrar

(3) Robert Dawson and others

Heard on 21 and 22 July 2020

Lord Leggatt

( with whom Lord Reed, Lord Hodge, Lady Arden, Lord Sales and Lord Hamblen agree)

Introduction
1

New ways of working organised through digital platforms pose pressing questions about the employment status of the people who do the work involved. The central question on this appeal is whether an employment tribunal was entitled to find that drivers whose work is arranged through Uber's smartphone application (“the Uber app”) work for Uber under workers' contracts and so qualify for the national minimum wage, paid annual leave and other workers' rights; or whether, as Uber contends, the drivers do not have these rights because they work for themselves as independent contractors, performing services under contracts made with passengers through Uber as their booking agent. If drivers work for Uber under workers' contracts, a secondary question arises as to whether the employment tribunal was also entitled to find that the drivers who have brought the present claims were working under such contracts whenever they were logged into the Uber app within the territory in which they were licensed to operate and ready and willing to accept trips; or whether, as Uber argues, they were working only when driving passengers to their destinations.

2

For the reasons given in this judgment, I would affirm the conclusion of the Employment Appeal Tribunal and the majority of the Court of Appeal that the employment tribunal was entitled to decide both questions in the claimants' favour.

The parties
3

The first appellant, Uber BV, is a Dutch company which owns the rights in the Uber app. The second appellant, Uber London Ltd (“Uber London”), is a UK subsidiary of Uber BV which, since May 2012, has been licensed to operate private hire vehicles in London. The third appellant, Uber Britannia Ltd, is another UK subsidiary of Uber BV which holds licences to operate such vehicles outside London. In this judgment I will use the name “Uber” to refer to the appellants collectively when it is not necessary to differentiate between them.

4

The claimants, and respondents to this appeal, are individuals who work or used to work as private hire vehicle drivers, performing driving services booked through the Uber app. For the purpose of the decision which has given rise to this appeal, the employment tribunal limited its consideration to two test claimants, Mr Yaseen Aslam and Mr James Farrar, both of whom were licensed to drive private hire vehicles in London. Like the employment tribunal, I will use masculine pronouns for brevity when referring to Uber drivers in this judgment in circumstances where all the claimant drivers are male.

5

At the time of the employment tribunal hearing in 2016, there were about 30,000 Uber drivers operating in the London area and 40,000 in the UK as a whole. Some two million people were registered to use the Uber app as passengers in London.

The Uber system
6

As described in more detail in the decision of the employment tribunal, Uber's business model is simple. Prospective customers download the Uber app (for free) to their smartphone and create an account by providing personal information including a method of payment. They are then able to request rides. To do so, they open the Uber app on their phone and make a request. In the period considered by the employment tribunal, users did not have to enter their destination when booking a ride through the app, but they generally did so. The Uber app identifies the passenger's location through the smartphone's geolocation system. Using the same technology, the app identifies the nearest available driver who is logged into the app and informs him (via his smartphone) of the request. At this stage the driver is told the passenger's first name and Uber rating (as to which, see below) and has ten seconds in which to decide whether to accept the request. If the driver does not respond within that time, the next closest driver is located and offered the trip. Once a driver accepts, the trip is assigned to that driver and the booking confirmed to the passenger, who is sent the driver's name and car details.

7

At this point the driver and passenger are put into direct contact with each other through the Uber app, but this is done in such a way that neither has access to the other's mobile telephone number. The purpose is to enable them to communicate with each other in relation to the pick-up, for example to identify the passenger's precise location or to advise of problems such as traffic delay. The passenger can also track the driver's progress on a map on their smartphone.

8

The driver is not informed of the passenger's destination until the passenger is collected. At that point the driver learns the destination either directly from the passenger or through the app (if the destination was entered when the ride was requested) when the driver presses “start trip” on his phone. The Uber app incorporates route planning software and provides the driver with detailed directions to the destination. The driver is not bound to follow those directions but departure from the recommended route may result in a reduction in payment if the passenger complains about the route taken.

9

On arrival at the destination, the driver presses “complete trip” on his smartphone. The fare is then calculated automatically by the Uber app, based on time spent and distance covered. At times and places of high demand, a multiplier is applied resulting in a higher fare. Drivers are permitted to accept payment in a lower, but not a higher, sum than the fare calculated by the app (although, in the unlikely event that a driver accepts a lower sum, the “service fee” retained by Uber BV is still based on the fare calculated by the app). Drivers are at liberty to accept tips but are discouraged by Uber from soliciting them.

10

The fare is debited to the passenger's credit or debit card registered on the Uber app and the passenger is sent a receipt for the payment by email. Separately, the Uber app generates a document described as an “invoice” addressed on behalf of the driver to the passenger (showing the passenger's first name but not their surname or contact details). However, the passenger never sees this document, which is not sent to the passenger but is accessible to the driver on the Uber app and serves as a record of the trip and the fare charged.

11

Uber BV makes a weekly payment to the driver of sums paid by passengers for trips driven by the driver less a “service fee” retained by Uber BV. In the cases of Mr Aslam and Mr Farrar, the service fee was 20% of the fares.

12

Drivers are prohibited by Uber from exchanging contact details with a passenger or contacting a passenger after the trip ends other than to return lost property.

13

Uber operates a ratings system whereby, after the trip, the passenger and driver are each sent a message asking them to rate the other anonymously on a scale of 1 to 5.

Working as a driver
14

To become an Uber driver, a person can sign up online. They must then attend and present certain documents at the offices of the local Uber company (which, for the London area, is Uber London). The required documents comprise a national insurance certificate, driving licence, licence to drive a private hire vehicle, vehicle logbook, MOT certificate and certificate of motor insurance. The applicant must also take part in what the employment tribunal described as “an interview, albeit not a searching one”, and watch a video presentation about the Uber app and certain Uber procedures. This process is referred to by Uber as “onboarding”.

15

Individuals accepted as drivers are given free access to the Uber app through their own smartphone or may hire a smartphone for £5 a month from Uber BV configured so that it can only be used to operate the Uber app. The driver has to provide and pay for his own vehicle, which must be on a list of accepted makes and models, in good condition, no older than a specified age and preferably silver or black. Drivers must also bear all the costs of running their vehicles, including fuel, insurance, road tax and the cost of obtaining a private hire vehicle licence.

16

Individuals approved to work as drivers are free to make themselves available for work, by logging onto the Uber app, as much or as little as they want and at times of their own choosing. They are not prohibited from providing services for or through other organisations, including any direct competitor of Uber operating through another digital platform. Drivers can also choose where within the territory covered by their private hire vehicle licence they make themselves available for work. They are not provided with any insignia or uniform and in London are discouraged from displaying Uber branding of any kind on their vehicle.

17

The employment tribunal made a number of findings about standards of performance which drivers are expected to meet and actions taken where drivers fail to meet these standards. For example, the tribunal found that a “Welcome Packet” of material issued by Uber London to new drivers included numerous instructions as to how drivers should conduct themselves, such as “Polite and professional at all...

To continue reading

Request your trial
1 cases
  • Mr D Aukett and Ms V Saunders v Sentimental Care Ltd and others: 3201600/2020
    • United Kingdom
    • Employment Tribunal
    • 6 May 2021
    ...them orally. After the conclusion of the case, and before I reached my final decision, the Supreme Court gave judgment in Uber BV v Aslam [2021] UKSC 5. I wrote to the parties, inviting them to address Both Counsel lodged supplementary submissions. I will refer to their original and supplem......
4 firm's commentaries
  • Gig round-up ' recent decisions from the gig economy
    • Australia
    • Mondaq Australia
    • 21 June 2021
    ...4 Uber BV and others (Appellants) v Aslam and others (Respondents) [2021] UKSC 5 This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. Fo......
  • Legal Update: Gig economy employment update
    • Australia
    • Mondaq Australia
    • 14 June 2021
    ...and potentially the collapse of Uber Eats' entire business model as a result of such a finding. The recent UK decision of Uber BV v Aslam [2021] UKSC 5, where the Supreme Court unanimously held that certain Uber drivers were "workers" for the purposes of the Employment Rights Act ......
  • UK Supreme Court's Decision On Status Of Uber Drivers And Its Significance On Gig Economy
    • United Kingdom
    • Mondaq UK
    • 10 May 2021
    ...rather than their employees or workers. The status of Uber drivers was at issue in the UK Supreme Court case of Uber BV v Aslam [2021] UKSC 5. Background Uber (the appellant) owned the Uber app which provides ride-hailing services and had been licensed to operate private hire vehicles in th......
  • Technology Has Enabled The Evolution Of The Disputes Lawyers Practice But Will It Spark A Revolution?
    • United Kingdom
    • Mondaq UK
    • 15 June 2021
    ...v Walter Hugh Merricks CBE [2020] UKSC 51 3 See Richard Lloyd v Google LLC [2019] EWCA Civ 1599 4 Uber BV and others v Aslam and others [2021] UKSC 5 The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT