Gig economy update: Uber drivers are ‘workers’ while Deliveroo riders are self employed

UK EAT upholds finding of 'worker' status of Uber drivers

• In its decision handed down last Friday, the UK Employment Appeals Tribunal (EAT) dismissed Uber's appeal of the UK Employment Tribunal's decision and agreed that Uber drivers were 'workers' for the purposes of the relevant UK legislation.

The Uber appeal

• In Uber B.V. v Aslam, Uber appealed the decision of the UK Employment Tribunal (ET) which concluded that an Uber driver located within their authorised territory with the Uber app switched on and in a position to accept work was a 'worker' for the purposes of various pieces of UK legislation.^[1]
• In its appeal, Uber made a number of arguments, including that the ET should not have disregarded the fact that there were written agreements between the drivers, Uber, and the passengers, which was inconsistent with the existence of a worker relationship.

The Uber decision

• Dismissing the appeal, the UK EAT held that the drivers were incorporated into the Uber business model, and are subject to restrictions and control which did not align with being in business on their own account.
• Relying on Autoclenz Ltd v Belcher and Ors the UK EAT found that the reality of nature of the relationship between the drivers and Uber was not indicative of an independent contractor arrangement. The UK EAT rejected the label of 'agency' used in the Uber contractual documentation, as it determined that the true arrangement in place was not one in which Uber acted as the drivers' agent.
• The decision was influenced by the following factors:
  • drivers are subject to obligations to accept trips offered by Uber;
  • drivers are penalised for cancelling trips once they have been accepted; and
  • Uber requires the drivers to be in their authorised territory with the app switched on, and are also required to be "able and willing to accept assignments".
• In terms of the impact of this decision, interestingly the UK EAT qualified its assessment on the basis that it is context specific, and said that the extent of any one driver's entitlements would be a matter of evidence in each case and depended on the length of time a driver remained ready and willing to accept trips for Uber.

Deliveroo defeats trade union claim in Central Arbitration Committee (CAC) ruling

• By way of contrast, Deliveroo successfully defended a test case taken by the Independent Workers Union of Great Britain (IWGB) on behalf of certain couriers in North London that IWGB be recognised for the purposes of collective bargaining.
• On 14 November 2017 the CAC agreed with Deliveroo's argument that its riders are self-employed. Riders' ability to substitute, or obtain a replacement rider for the job, was central to the CAC's finding.
• Since the CAC found that the riders are not 'workers', it could not accept the IWGB's claim for recognition and negotiation rights on terms and conditions.

What next for the gig economy?

• We expect that Uber will appeal the EAT's decision to the UK Court of Appeal or Supreme Court. It is also in the midst of appealing Tfl's decision not to renew its London licence, meaning that Uber drivers can continue to operate in London until the appeal process has been exhausted.
• Separate to the IWGB application for union recognition, Deliveroo is still awaiting a decision from the UK EAT on the employment law status of its riders, the hearing of which began in early November.
• While there is currently no hybrid 'worker' status in Irish legislation, the ultimate outcome of cases like these will undoubtedly influence the development and legal regulation of the gig economy in this jurisdiction. We continue to watch this space with interest!

For further information on this article please contact Ciara McLoughlin, Rachael Evans or your usual Employment Team contact.

Date Published: 16 November 2017