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The Supreme Court – the UK’s final court of appeal – will over the next two days arrive at a final ruling over the employment status of Uber drivers in the UK, bringing an end to a saga that began in 2016.
Uber BV and others v Aslam and others will establish once and for all whether or not the 45,000 drivers, mostly in London, are workers and entitled to the national minimum wage, holiday pay and paid rest breaks.
In October 2016 an employment tribunal found in favour of the drivers in a case brought by the GMB union and law firm Leigh Day.
Maria Ludkin, GMB’s legal director, at the time called it “a monumental victory”.
She said: “This loophole that has allowed unscrupulous employers to avoid employment rights, sick pay and minimum wage for their staff and costing the government millions in lost tax revenue will now be closed.”
However, Jo Bertram, then regional general manager of Uber in northern Europe (but who has since left the firm and joined O2), said: “Tens of thousands of people in London drive with Uber precisely because they want to be self-employed and their own boss.”
Uber appealed but an employment appeal tribunal in November 2017 supported the original verdict.
In December 2018 the case, which centred on whether the drivers were “workers” while they had the ride-hailing app switched on and were ready to accept work, went before the Court of Appeal. Again, the court supported the original verdict but this time not unanimously: Lord Justice Underhill disagreed with his two colleagues Sir Terence Etherton and Lord Justice Bean and wrote that it was “perfectly explicit in the Agreement that drivers provide their services to the passengers as principals, with Uber’s role being that of an intermediary”.
Bean and Etherton, however, agreed that Uber drivers were under a positive obligation to be available to accept passengers while the app is on, which amounted to “work”.
The Supreme Court case being held over 21 and 22 July will be heard by justices Lord Reed, Lord Hodge, Lady Arden, Lord Kitchin, Lord Sales, Lord Hamblen and Lord Leggatt. The claimants are Uber drivers James Farrar, Yaseen Aslan, Robert Dawson and others.
The respondents contend that, during the periods covered by their claims, they were ‘workers’ for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998. As such, the Respondents claim that they were entitled to the minimum wage, paid leave and other legal protections. The appellants argue that the Respondents were independent, third party contractors and not ‘workers’,” – the case description, from the Supreme Court’s website
The case will have significant implications on the rights of the estimated 5.5 million gig economy workers in the UK – a number that is likely to grow as the coronavirus crisis forces significant numbers of people out of work.
City law firm Bates Wells has represented the former Uber drivers bringing a case against the firm on a pro bono basis since the first appeals case.
Bates Wells associate Rachel Mathieson told Personnel Today: “One of the key issues is that if they are workers, when are they workers? Is it when the app is on – which is not accepted by Uber – or is it when there is a passenger in the car? Uber’s position is that there is no working time essentially.”
She added that there had been cases all over the world on the same issue, with similarly complex legal arguments being heard from both sides.
In March, France became the latest country to agree that Uber drivers were not self employed. In French law there is no separate worker status so the court ruled that Uber drivers were employees. Last September, California’s state senate also ruled that Uber drivers were not self employed.