July 21: A five-year battle over the status and rights of Uber drivers reaches the UK’s supreme court in a case that lawyers believe has the potential to transform the gig economy in Britain.
Uber wants seven of the UK’s most senior judges to overturn a 2018 appeal court ruling that drivers for the ride-hailing giant are workers and entitled to workers’ rights including the national minimum wage and paid holiday, The Guardian reported.
If it loses the case, which starts on Tuesday, then Uber could face paying tens of millions in compensation, according to lawyers who have worked on the case. Hundreds of thousands of other gig workers with similar status in the booming parcel and food delivery sectors will be watching the outcome closely. If Uber wins, unions fear a collapse in workers’ rights across the economy with “millions of people pushed permanently into precarity”.
“This is our final showdown with Uber but the stakes could not be higher for everyone,” said Yaseen Aslam, who alongside fellow former Uber driver James Farrer, brought the original employment tribunal case. “If Uber wins, there will be an unseemly rush by greedy employers to collapse employment as we know it and Uber-ise the entire economy.”
In a further twist, Aslam and Farrer, who lead the App Drivers & Couriers Union, have been warned they may no longer be able to operate as a trade union if the supreme court overturns the ruling that they are workers.
The San Francisco-based company insists its app, used by 65,000 minicab drivers in the UK, is merely a platform to connect self-employed drivers with customers. It says they enter into individual contracts with passengers to provide driving services. Drivers were under no obligation to use the app at any time, or to accept trips offered to them and Uber does not pay them for any services.
But the employment tribunal and later the court of appeal, the second highest court in the UK after the supreme court, found Aslam and Farrer were not self-employed contractors, but were “workers” under the Employment Rights Act 1996.
This was largely because of the level of control that Uber has had over those drivers, through its policies, systems of rating drivers, setting routes and encouraging them to take fares.
In the employment tribunal ruling, the judge accused Uber of using “twisted” language in its contractual documentation and the court of appeal judges said there was a “high degree of fiction” in the wording of the standard agreement between Uber and its drivers.
Worker status is still a form of self-employment but would guarantee basic protections for Uber drivers including the national minimum wage, holiday pay, and protection against discrimination, and would require Uber to commit to more health and safety obligations, lawyers for Aslam and Farrer said.
About 1,000 other Uber drivers have made similar claims but they have been stayed pending the supreme court verdict. Around 45,000 drivers are registered with Uber in London alone.
If Farrer and Aslam succeed, the case will return to the employment tribunal, which will decide how much compensation drivers are entitled to. The law firm Leigh Day, which originally represented the pair, said tens of thousands of Uber drivers could be entitled to an average of £12,000 each in compensation.
“Now more than ever we have seen how difficult it can be for Uber drivers, many of whom have put themselves at risk by continuing to drive during the lockdown for those who need them for essential journeys,” said Nigel McKay, partner at the firm.
“Yet Uber continues to deny its drivers basic workers’ rights. We believe that it’s clear from the way Uber operates that its drivers should be given workers’ rights. From the amount of control it exerts over them, to the ratings system it uses to assess performance. These circumstances all point to Uber drivers being workers.”
Uber argues that however the case turns out it will not transform its business model.
“The vast majority of drivers want to work independently, and over a number of years we’ve made significant changes to our app to offer more benefits with total flexibility,” said Jamie Heywood, regional general manager for northern and eastern Europe. “Drivers can determine if, when and where they drive, but can also access free Axa insurance to cover sickness or injury, as well as maternity and paternity payments.”
It said it commissioned research in 2018 that suggested Uber drivers were earning on average £11 an hour – above the minimum wage.
Uber will argue that drivers are not required to drive with the company given they are never obliged to log on, and when logged on, the worst that has ever happened was a driver being logged out for a short period of time when showing high rejections.
It will say the level of control exerted by Uber is similar to that of traditional minicab companies, which have long used self-employed drivers. It will also raise the question of what happens if a driver is logged on to competing minicab apps at the same time: can they only claim minimum wage and holiday rights from one of those companies or all of them?