Uber’s terms described its drivers as independent businesses serving passengers. The employment tribunal had to decide who actually set the price, controlled access to bookings and could end the relationship. Those practical questions mattered both to the drivers’ statutory protection and to which hours counted.
The dispute
The tribunal concentrated on two London private hire drivers, Yaseen Aslam and James Farrar. Uber BV owned the app, while Uber London held the local private hire operator’s licence.
The drivers claimed rights given only to “workers”: the national minimum wage, paid annual leave and, for two claimants including Mr Aslam, protection from detriment for whistleblowing. A worker includes an employee, but also a person who personally does work for someone who is not that person’s own client or customer. It was not disputed that the driving was personal, or that no Uber company was the drivers’ client. The argument was whether the drivers worked for Uber London, or only for passengers under contracts made through Uber as a booking agent.
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After a preliminary hearing, the tribunal found that the claimants were not employed under contracts of employment, but were workers for Uber London. It also found that they were working when the app was on, they were in their licensed territory, and they were able and willing to accept trips. Uber’s appeals failed in the Employment Appeal Tribunal and, by a majority, in the Court of Appeal. Underhill LJ dissented.
How the work was organised
Drivers provided their own vehicles, paid their own running costs and chose when to log on. Under the arrangements examined by the tribunal, Uber selected which driver would be offered a request, calculated the fare and collected payment. It deducted a service fee before paying the driver.
Drivers did not know the destination before collecting the passenger. Repeated refusals could lead to a temporary log-off. Uber used passenger ratings to set standards, could remove a driver from the platform and could decide to give a passenger a refund.
Drivers had to accept Uber BV’s written terms. Those terms called the driver an independent transport provider, described Uber BV as supplying technology and collecting payment as the driver’s agent, and said that a trip created a contract between driver and passenger to which no Uber company was a party. The passenger terms said Uber London accepted bookings as the driver’s agent. There was no written contract between Uber London and the drivers.
Why the written terms did not decide the case
Lord Leggatt, with whom Lord Reed, Lord Hodge, Lady Arden, Lord Sales and Lord Hamblen agreed, held that those terms were not the starting point. The rights claimed came from legislation, not from what Uber chose to write. The legislation protects people who are subordinate to and dependent on the person for whom they work, and who cannot safely be left to bargain for themselves. If the business that dictates the paperwork could decide whether the legislation applied, the protection would fail. The statutes also prohibit contracting out, so clauses designed to stop a driver claiming worker status have no effect.
The Court followed Autoclenz Ltd v Belcher. In this setting there is no presumption that a signed document contains the whole agreement. The tribunal looks at the reality of the relationship, and disregards terms whose object is to exclude statutory rights.
The tribunal found no act by which drivers had authorised Uber London to make contracts on their behalf. A term agreed with passengers could not itself confer that authority. The Court did not need to give a final ruling on whether an agency-only model would comply with London’s licensing rules.
Why the drivers were workers
The drivers could choose when and where, within their licensed area, to work, and they had no continuing duty to work between engagements. That freedom did not stop them being workers while working. The question was one of fact for the tribunal. Lord Leggatt considered that worker status was the only conclusion it could reasonably have reached. Five features were decisive.
Uber fixed the fare and its own fee. Drivers could not charge more, and charging less would come entirely from the driver. Uber could also decide a refund. Uber dictated the drivers’ agreement and the terms on which passengers were carried. Once a driver logged on, Uber limited the information given, withheld the destination until pickup, and enforced acceptance and cancellation rates with a log-off which Uber itself described as a penalty. Uber vetted cars, owned the technology, directed the route and used ratings to manage and, if necessary, end the relationship, not to let passengers choose a driver. It also confined contact to the individual trip and prohibited later contact except to return lost property. The service was standardised. Drivers could not set prices, offer a distinctive service or build passenger loyalty. In practice they could earn more only by working longer hours while meeting Uber’s measures.
When they were working
A driver was working for Uber London at the latest on accepting a trip. The tribunal was also entitled to count waiting time: the driver had to be logged on within the licensed territory and ready and willing to accept work. A driver could refuse an individual trip, but repeated refusals attracted a penalty.
Time on call can be working time where the person is at the place of work. Here that place was the vehicle’s current location. Whether a driver simultaneously available to another operator was at Uber’s disposal was a question of fact and degree. No evidence before the 2016 tribunal showed another app-based private hire service then operating in London, or that drivers could in practice hold themselves out to other operators while waiting. The tribunal was not wrong to treat the periods it identified as working time. Because the drivers were not working only while carrying passengers, the hours were not “time work” for the national minimum wage. They were not salaried or output work either, so the tribunal could treat them as “unmeasured work”.
Verdict: The Supreme Court unanimously dismissed Uber’s appeal. The claimants were workers for Uber London, and the tribunal could count the logged-on time meeting all three conditions. The Court did not assess monetary awards. Whether a driver available to several operators is working for any one operator depends on the facts.
