Uber BV and Others v Aslam and Others
| Jurisdiction | England & Wales |
| Court | Supreme Court |
| Neutral Citation | [2021] UKSC 5 |
| Year | 2021 |
Employment - Contract - Worker - Private hire vehicle drivers providing passenger transportation services through smartphone app provided and operated by company - Written agreement stating no employment relationship created - Whether drivers undertaking to perform work or services for company or as independent contractors - Whether “workers” entitled to national minimum wage, paid annual leave and other workers’ rights - Whether “working time” including all time drivers logged on to app -
The claimants worked as private hire vehicle drivers, providing transportation services to passengers in London through a smartphone app operated by the appellant companies, the first of which was a Dutch company which owned the rights to the app and the second of which (“the company”) was a UK subsidiary licensed to operate private hire vehicles in London. Potential drivers were interviewed and taken through an induction process, which included advice as to expected standards of behaviour. Drivers supplied their own vehicles and were responsible for the running costs and payment of their private hire vehicle driver’s licence fee. They were not permitted to substitute other drivers, were not given passengers’ surnames or their intended destination until the journey started and were told not to exchange contact details with passengers. However, they were not prohibited from working for competitors. Routes were determined by the app’s mapping software and if there was a dispute between passenger and driver as to the route the onus was on the driver to justify any departure from that route. The company monitored driver ratings and passenger comments which, if unfavourable, could lead to drivers being removed from the platform. Drivers were free to accept or refuse trips but were expected to accept at least 80% of trip requests and could be logged off the app if they declined three trips in a row. The fares were calculated and the drivers paid weekly by the Dutch company and the drivers were responsible for their own tax. The Dutch company’s standard written agreements with the drivers stated that the drivers were independent contractors, performing services under contracts made with passengers through the company as their booking agent. The claimants made claims that they were “workers”, within the meaning of section 230(3)(b) of the Employment Rights Act 1996F1, section 54(3)(b) of the National Minimum Wage Act 1998F2 and regulation 2(1) of the Working Time Regulations 1998F3, and, as such, entitled to the minimum wage in accordance with section 1 of the 1998 Act and to annual leave under regulation 13 of the 1998 Regulations. At a preliminary hearing, an employment tribunal held that the company was precluded from relying on “carefully crafted documentation” that bore no relation to reality and it concluded that any drivers who had the company app switched on, were within the territory in which they were authorised to work, and were willing and able to accept assignments, were working for the company under a “worker” contract, including during gaps between assignments; and that, as workers, such drivers were engaged on “working time” as defined by regulation 2(1) of the 1998 Regulations with the result that they had rights to paid annual leave and the national minimum wage. The Employment Appeal Tribunal dismissed the companies’ appeal and the Court of Appeal, by a majority, dismissed the companies’ further appeal.
On appeal by the companies—
Held, dismissing the appeal, (1) that there was no written contract between the claimant drivers and the London-based company, and the nature of their legal relationship had to be inferred from the parties’ conduct; that there was no factual basis for asserting that the company acted as a booking agent for the drivers, and the correct inference was that the company contracted with passengers and engaged drivers to carry out bookings for it; that, in any event, it was wrong in principle to treat the written agreements as a starting point in deciding whether an individual was a “worker” within the meaning of section 230(3)(b) of the Employment Rights Act 1996, section 54(3)(b) of the National Minimum Wage Act 1998 and regulation 2(1) of the Working Time Regulations 1998; that, rather, it was necessary to determine, as a matter of statutory interpretation, whether the claimants fell within the definition of a “worker” in those provisions, irrespective of what had been contractually agreed; that, in so doing, it was necessary to have regard to the purpose of the provisions and to interpret their language, so far as possible, in the way which best gave effect to that purpose; that the purpose of the provisions was to protect vulnerable workers, who were in a position of subordination and dependency in relation to a person or an organisation which exercised control over their work; and that, accordingly, on the facts found by the employment tribunal, which showed that the service performed by the drivers was very tightly defined and controlled by the company and that the drivers had little or no ability to improve their economic position through professional or entrepreneurial skill, the tribunal had been entitled to find that the claimants were “workers” for the purposes of the relevant provisions (post, paras 45, 49, 56, 68–71, 75–77, 79–80, 87, 92, 93, 101, 119–120, 139).
(2) That, while a driver was clearly working under a contract with the company at the latest when he accepted a trip, in view of the company’s practice of logging drivers off the app if they failed to maintain a prescribed rate of acceptances, and in circumstances where there was no evidence of any other app-based private hire vehicle service operating in London, or that drivers logged into the app were as a matter of practical reality also able to hold themselves out as at the disposal of other private hire vehicle operators when waiting for a trip, the employment tribunal had been entitled to find that the claimants were working under such contracts whenever they were logged into the app within the territory in which they were licensed to operate and ready and willing to accept trips (post, paras 124, 126–130, 134–137, 139).
The following cases are referred to in the judgment of Lord Leggatt JSC:
AFMB Ltd v Raad van bestuur van de Sociale verzekeringsbank
Allonby v Accrington and Rossendale College
Autoclenz Ltd v Belcher
Bates van Winkelhof v Clyde & Co LLP (Public Concern at Work intervening)
Byrne Bros (Formwork) Ltd v Baird [
Carmichael v National Power plc [
Cheng Yuen v Royal Hong Kong Golf Club [
Clark v Oxfordshire Health Authority [
Collector of Stamp Revenue v Arrowtown Assets Ltd
Cornwall County Council v Prater
Fenoll v Centre d’Aide par le Travail “La Jouvene”
First Tower Trustees Ltd v CDS (Superstores International) Ltd
Hashwani v Jivraj (London Court of International Arbitration intervening)
James v Redcats (Brands) Ltd [
Khan v Checkers Cars Ltd UKEAT/208/05 (unreported) 16 December 2005,
Lee Ting Sang v Chung Chi-Keung [
McCormick v Fasken Martineau DuMoulin LLP
McMeechan v Secretary of State for Employment [
Mingeley v Pennock (trading as Amber Cars)
Nethermere (St Neots) Ltd v Gardiner [
Pimlico Plumbers Ltd v Smith
Quashie v Stringfellow Restaurants Ltd
Revenue and Customs Comrs v RBS Deutschland Holdings GmbH
Secret Hotels2 Ltd (formerly Med Hotels Ltd) v Revenue and Customs Comrs
Sindicatul Familia Constanța v Direcția Generală de Asistență Socială și Protecția Copilului Constanța
Snook v London and West Riding Investments Ltd [
Street v Mountford [
UBS AG v Revenue and Customs Comrs
Union syndicale Solidaires Isère v Premier ministre
Ville de Nivelles v Matzak
Windle v Secretary of State for Justice
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