Happy New Year! We hope everyone has enjoyed their Christmas and feel all the more productive this week for a bit of rest (canned laughter). Welcome back to your weekly case law update, if you cast your mind back, you may remember our final update of 2018 had features on British Cycling and Raheem Sterling. Prior to that, our final case law update concerned the gig economy and trade unions.
As it is the first week back we thought we would ease ourselves back in with the much covered Court of Appeal decision in Uber v Aslam. The ongoing Uber case is one of the more high-profile employment status cases that we covered at both ET and EAT level.
The questions this week are:
Are Uber drivers self-employed?
What are the prospects of success for an appeal by Uber to the Supreme Court?
The facts of the case can be found in either of our previous posts and in line with the previous decisions, the Court of Appeal held that Uber drivers were workers.
The rationale for the decision was that despite the contract stating the drivers were self-employed, and Uber was an intermediary to connect drivers to passengers, the way the contract was performed meant the drivers were workers.
However, the decision reached by the Court of Appeal was not unanimous. Whilst two of the three CoA judges (the Master of the Rolls and Lord Justice Bean), one of them, Lord Justice Underhill took a dissenting view that the contract was actually performed as one of self-employment.
LJ Underhill’s reasoning was that the Uber app was not dissimilar to how many taxi and minicab firms act. Taxi firms act as an intermediary for their self-employed drivers. As such, these drivers would only be working when they accepted a job via the Uber app, this being akin to when regular taxi drivers accept fares.
This rationale, when looked at in the scheme of how the wider taxi industry operates, makes a lot of sense. Most taxi firms have some degree of control over their drivers.
To add a further layer of intrigue, LJ Underhill is also the former president of the EAT and therefore an employment law specialist. Should Uber appeal this case to the Supreme Court then Underhill’s dissent could play a large part in a successful appeal.
The takeaway point:
To answer today’s first question, yes Uber drivers are currently viewed as workers. However, Uber is likely to appeal this decision to the Supreme Court. Given the cogent nature of LJ Underhill’s dissenting judgment and his expertise in employment law, we wouldn’t be surprised if the Supreme Court ruled in Uber’s favour.