Bawtrees News


Employment Law Update

The Employment Appeals Tribunal heard the case of Aslam & Others –v- Uber on 27th and 28th September 2017 and we are eagerly awaiting the case report.

To recap, on 28 October 2016, theEmployment Tribunal held that Uber drivers are workers for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998.

Uber’s case was that it is simply a technology platform which puts drivers in touch with passengers and that it is in no way a provider of taxi services.

Uber had complex contractual documentation; however, the Tribunal decided that the contractual documentation did not correspond with the reality of the relationship between the parties and therefore the Tribunal disregarded the contract.

It is well known that Uber has had a difficult week, having lost its licence to operate in London and now facing calls for its licence to be withdrawn from Brighton, Bristol and Bath.

According to the Financial Times, Uber has about 40,000 drivers in London; however, despite the threat of the loss of their licence in the capital, Uber are still seeking to defend their contention that they are not employees, but rather drivers, thus avoiding the obligation pay their "drivers" the national minimum wage.

There is an expectation that the EAT will not overturn the decision of the Tribunal giving the growing case law in this area.

Earlier this year in the case of Pimlico Plumbers Limited & Mullins -v- Smith, the Court of Appeal upheld an employment tribunal's decision that a plumber was a worker and not truly self-employed.

This case came at a time of significant interest in worker status, following the recent Tribunal decisions in the Uber and Citysprint cases.

In the UK, there are two types of employment statuses — “employees” and “workers”. Both groups are entitled to the minimum wage and holiday pay, but only employees have broader rights such as suing for unfair dismissal. Independent contractors have none of these rights.

In Pimlico, Lord Justice Underhill appears to treat the minimum hours issue as relevant in determining whether the relationship is casual or not. He distinguishes two situations where the question of whether the work is casual or not is relevant:-

a) The claim depends on the individual enjoying employee or worker status: the degree of obligation to work is relevant in that it might shed light on the nature of the relationship while the work in question is being done.

b) The claim directly depends on the individual's status during periods of non-work.

This case is important as it is subsequent to the Tribunal's decision in Uber.  Furthermore it is also important to note that the Tribunal will be aware of the pubic, press and political attention recently attracted by concerns over the "gig economy".

The next couple of days will therefore in all likelihood put a further dent into Uber's already troublesome week.

Sean Kirk
29 September 2017

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