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In this article, Hassan Tahir discusses the case of Uber BV and others (Appellants) v Aslam and others (Respondents).
On the 19th of February, 2021, the Supreme Court of the United Kingdom addressed and passed its judgment on two key issues between the Appellants, namely Uber BV, Uber London Ltd, and Uber Britannia Ltd and the many Respondents- who were members of Uber. The issues were:
- Whether the Respondents could be deemed to be workers of the Appellants- providing a personal service.
- If the Respondents were deemed to be workers of the Appellants, what periods exactly constituted their working times.
The Appellants are part of many companies that provide “private hire vehicle booking services” in the United Kingdom and abroad. Trips are organised through the Appellants’ app, which connects drivers to their riders. The Respondents are members of the Appellants’ company, and act, or have previously acted, as drivers who have actively used the respondents’ app.. The Respondents argue that, during the time covered by their claims, they acted as “workers” “for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998”. Hence the Respondents claim that they were entitled to minimum wage, paid leave, and other legal protections that come with being a worker.
However, opposing this, the Appellants argue that the Respondents were deemed to be an independent third party and not at all “workers”. The Employment Tribunal found the Respondents were “workers”. And judged them to be “working” at any time they “(a) had the Appellants’ app switched on; (b) were within the territory in which they were authorised to work; and (c) were able and willing to accept assignments”- this is quoted from the Supreme Court’s case facts. These rulings were upheld by both the Employment Appeal Tribunal, and the Court of Appeal. Thus the Appellants then appealed to the Supreme Court.
The Appellants were represented by Dinah Rose QC and Fraser Campbell, who were instructed by DLA Piper LLP.
The Respondents were represented by Jason Galbraith-Marten QC and Sheryn Omeri, who were instructed by Bates Wells & Braithwaite LLP, along with Oliver Segal QC and Melanie Tether, who were instructed by Leigh Day.
Here, I have briefly mentioned some of the key submissions introduced by the Appellants.
The Appellants first contended that drivers did not work for them and rather worked through Uber London- which was acting as an agency. They backed this proposal with the fact that according to the terms of the written agreements drivers signed with Uber BV, drivers are provided with “technological services”, and Uber acts as a “booking agent”.
However, the Court found various reasons as to why Uber London could not be deemed an agency.
For an agency relationship to take place, “an overt act by the principal conferring authority(in this case the drivers) on the agent(Uber London” to act on the principal’s behalf”, is required. For example, a contractual agreement.
However, the court found absolutely no proof of such an overt act by drivers that conferred authority onto Uber London. The written agreements which the Appellants contended supported the idea Uber London was an agent, were only made between the driver and Uber BV- not Uber London, and hence no other Uber company could be a party to those agreements. Thus they could not be taken as proof of an overt act conferring authority.
Furthermore, the Appellants went on to argue that the earlier ruling passed by the Employment Tribunal was incorrect in law, as it had involved disregarding, without “any legal justification” the written terms of the “Services Agreement”. Uber submitted that as per the decision passed regarding Autoclenz Ltd v Belcher  UKSC 41;  ICR 1157, “for the purposes of applying a statutory classification”, a tribunal or court can disregard terms of a written agreement, should it be proven that the “terms in question” do not accurately represent what was “actually agreed” by the parties, as confirmed by “considering all the circumstances of the case including how the parties conducted themselves in practice”. However the flip side of this is that should there be no difference between the terms of the written agreement, and how the parties actually operated, there is no reason to disregard the terms of the written agreement.
Hence, the Appellants contended that there was no inconsistency in the case of the written agreements between Uber, its drivers, and passengers and how that tripartite relationship( as a drivers-first party, made the written agreements with Uber BV- second party, but also worked under Uber BV affiliates, such as Uber London-third party) actually operated in practice. Uber claims that the facts established by the employment tribunal (or, alternatively, that the tribunal should have found) are consistent with the written terms stating they “were performing their services under contracts made with passengers through the agency of Uber London and not for or under any contract with any Uber company”. And as a result of such consistency, there is no legal reason to disregard the “classification of the parties’ relationships set out in the contractual documentation(written agreement)”. And thus, Uber London should be deemed an agency.
However, this submission was dismissed. The Court found Uber BV’s written terms (in their Services Agreement) to “ purport to agree matters of fact rather than law”, hence Uber would rely on “contractual estoppel” to make legally binding their written agreement. This allows some of the written terms to prevent a driver from submitting in any case that he performs “ transportation services for or under a contract with any Uber company or that he is directed or controlled in connection with the provision of transportation services by any Uber company”. As a result of this, the driver would be unable to claim that he is a worker for Uber, and would not be entitled to the National Minimum Wage Act of 1998- which the court found to be blatantly the aim of the drafter. Hence section 49(1) of the National Minimum Wage Act would make void such, and all other, provision in the Service Agreement which seeks to preclude “a driver from claiming rights conferred on workers by the applicable legislation”, thus also making void the terms proposed by the Appellant to support the idea Uber London could be deemed an agency.
The Supreme Court’s judges unanimously dismissed the appeal on many grounds, some of which I have explained to an extent here, and agreed with the original rulings of the Employment Tribunal.
This case also considered the extensive ramifications for the nature of “worker status” and, as a consequence, employment rights in general, but also specifically in the gig economy, but, I have not discussed these topics in this article. However, should you have an interest in such areas, I would strongly recommend you read the full judgment from the website of The Supreme Court.