Rosemary Connolly

The Supreme Court ruled last Friday that taxi drivers providing services to Uber were workers providing personal services and thus entitled to certain statutory protections, e.g. holiday pay, minimum wage, and concerning whistle-blowing.

Additionally, the Supreme Court ruled that all of the time during which a taxi driver was logged on to the Uber app counted as working time.

At each stage of this litigation the definition of worker at section 230(3) of the Employment Rights Act 1996 has been at issue.

The legislation affords a wide range of protections not only to persons employed under a contract of employment but also to other categories of self-employed individuals, including those working under a contract “whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual”.

The Employment Tribunal at first instance found that the claimants, Aslam and Farrar, conformed to this description and consequently had worker status.

In Friday’s ruling a unanimous Supreme Court dismissed Uber’s final appeal against this ruling.

The central argument advanced by Uber was that taxi drivers were not workers but rather users of technology provided by Uber’s app, whereby a contract was formed between individual drivers and passengers, with Uber merely providing a collection service by means of which the passenger could pay the driver. Consequently they were independent contractors directly engaged by passengers.

The Supreme Court disagreed. It found that the nature of the legal relationship was to be inferred from the parties’ conduct rather than written agreements. In other words, what was important was the actuality of the situation.

The Supreme Court noted that the purpose of the Employment Rights Act 1996 was to give protection to vulnerable individuals with little or no say over their pay and working conditions given their subordinate and dependent position to the person or entity controlling their work.

The Supreme Court agreed with the Employment Tribunal that five particular aspects of the relationship between Uber and taxi drivers using its app justified the conclusion that they were workers under contracts with Uber, these being:

• The fact that the rate charged for the fare was calculated by Uber and could not be changed by the driver. Accordingly, Uber dictated the driver’s rate of pay.
• The fact that the terms upon which drivers provided their services were set by Uber without input from drivers.
• The fact that once logged on to Uber’s app, drivers were monitored as to their rate or acceptance of passenger requests and faced penalties if too many were declined or cancelled.
• The fact that Uber operated a ratings system by means of which passengers rated the service provided. Repeated poor ratings would lead to a warning and ultimately termination of the relationship with Uber.
• Finally, the fact that the relationship between the passenger and the driver was constrained by Uber to the minimum level of engagement necessary to facilitate an individual journey only.

Taking all of this into account, the transportation service performed by drivers and offered to passengers via the Uber app was very tightly defined and controlled by Uber and drivers relatively speaking were subordinate to and dependent upon Uber for their livelihood.

As to the second question posed, the Supreme Court ruled that a driver was working during any period when he/she was logged onto the Uber app within the territory in which he/she was licensed to operate and ready and willing to accept passengers.

This decision has significant implications for the so-called ‘gig economy’ and goes some way to redressing the balance in favour of such workers qualifying for basic statutory entitlements to holiday pay, minimum wage and protection against suffering whistle-blowing detriment.

• Rosemary Connolly is the principal solicitor at Rosemary Connolly Solicitors in Warrenpoint, Co Down.