Uber’s appeal against the decision that two of its drivers are workers will be heard by the Court of Appeal on 30 and 31 October 2018.
The Employment Appeal Tribunal decision
The Employment Appeal Tribunal (EAT) had upheld the employment tribunal decision that two Uber drivers were “workers” (rather than self-employed), and are therefore entitled to the national minimum wage, paid rest breaks and statutory holiday pay.
The EAT decided that the tribunal was entitled to ignore the written documentation and that the reality was that the drivers were not in business themselves but working for Uber. There was no agency relationship and the tribunal had taken all relevant matters into account.
Agreeing with the tribunal’s analysis
The tribunal had earlier considered a number of factors. In particular, the employment tribunal took into account control Uber has over its drivers such as Uber controlling key information about the passengers and excluding the drivers from it; Uber setting the routes; and Uber imposing numerous conditions on drivers.
The EAT also agreed with the tribunal that once a driver switched on the app, was within a territory where they were authorised to work and was able and willing to accept assignments they would be working.
Uber initially tried to appeal to the Supreme Court, leapfrogging the Court of Appeal, but the application was refused. Instead the Court of Appeal will hear the appeal on 30 and 31 October 2018.
Regardless of the outcome of an appeal, people working in the gig economy still need greater protection, Even if Uber loses any appeal the decision will only relate to the Uber operating model. Uber could slightly change its model so that its drivers fall outsider “worker” status, and of course other platform companies have different set ups.
In July 2017 Matthew Taylor published his Good Work report.
Taylor’s recommendations have included, among other things:
a) Renaming the worker category “dependent contractor”;
b) That to come within the new “dependent contractor” category there should no longer be a requirement for personal service but there should be a greater emphasis on control;
c) Considering National Minimum Wage (NMW) piece rates for gig workers based on output/gigs; and
e) Streamlining the process for determining employment status, waiving tribunal fees for that part of the process and reversing the burden of proof so that that the business has to prove that the individual is not entitled to workers’ rights.
The Government has yet to clarify its proposals for reform.