The Supreme Court has unanimously upheld an employment tribunal decision that Uber drivers are workers. In particular, it was held that worker status was a question of statutory interpretation, rather than contractual interpretation. Therefore, the written documentation between Uber and the drivers was not the correct starting point. Instead, it was necessary to consider the purpose of the relevant legislation, which was to protect vulnerable individuals in a position of subordination and dependence in relation to another person who controls their work. The greater the degree of control, the more likely it was that the individual was a worker.
Interestingly, applying that analysis to the facts in this case found that the drivers were workers. Five elements of the decision emphasised were:
- Uber dictated the fare charged by the drivers, which determined their pay.
- Uber imposed the contractual terms on which the drivers provided their services.
- Uber constrained the drivers’ choice to accept or decline rides.
- Uber exercised significant control over the way in which drivers provided services.
- Uber restricted communication between driver and passenger.
Taking these factors together, it was clear that the services provided by the drivers were very tightly defined and controlled by Uber. This meant that the drivers were limited in their ability to profit from their work: the only way they could increase their earnings was by working longer hours while constantly meeting Uber’s performance measures.
In addition, it was also upheld that the drivers’ working time was not limited to the time spent driving passengers to their destinations, but also included any period when the driver was logged in to the Uber app, within the territory in which they were licenced to operate, and ready and willing to accept rides. All such time also counted as “unmeasured work” for national minimum wage purposes.
Following the landmark ruling, Uber has announced that from 17 March 2021 all of its drivers, irrespective of their age, will receive at least the National Living Wage (NLW), after expenses, once they have accepted a trip request. Although, no mention has been made of compensation for past entitlements and drivers will not be paid at this rate when they are not carrying out trips.
All drivers will receive paid holiday time based on 12.07% of their earnings, paid on a fortnightly basis, as well as free insurance to cover sickness, injury and parental payments. This insurance cover was introduced in 2018. Uber has confirmed that drivers will still be able to choose when and where they drive.
However, it is a common belief that drivers should receive a minimum rate of pay from the moment they log onto the app, not only when they are carrying out trips.