Uber has lost its appeal to the Employment Appeal Tribunal (EAT) against the earlier decision of the Employment Tribunal (ET) to find that Uber drivers were workers for employment law purposes.
In Uber B.V. Uber London Ltd and Uber Britannia Ltd v Mr Y Aslam Mr J Farrar Mr R Dawson and Others [2017] UKEAT 0056, the EAT considered whether mutuality of obligation existed between drivers and Uber. Drivers who had switched on the Uber App within their authorised territory and where able and willing to accept work were then under a worker’s contract and ‘working’ for the purposes of the National Minimum Wage Act 1998, the Employment Rights Act 1996 and the Working Time Regulations 1998.
The EAT found that the ET were right to disregard the contracts' use of the word ‘agency’ and to consider the reality of the situation when establishing employment status and worker status:
- The ET’s findings on the level of control and the obligation on a driver to accept trips offered were appropriate.
- Each case must be reviewed to ensure that the drivers are not holding themselves out as available to other private hire vehicle operators in between accepting Uber trips.
- Where they are not, it is fair to say that they are ‘working’ and the time in between trips is ‘working time’, as they are ‘on duty’, i.e. the app is on.
Workers are entitled to the National Minimum Wage, they are entitled to an right to holiday pay, to rely on the working time regulations limit of 48 hours per week and they may be entitled to SSP, SMP and SPP.
UPDATE: the decision was upheld by the Court of Appeal.
Comment
Uber are still waiting to see what will come out of Jolyon Maugham QC’s challenge in the High Court that Uber should be compulsorily registered for VAT. This relies on the decision of the above case on ‘workers’ and that this means Uber are providing transport services.
It is currently understood that HMRC have not yet issued a protective assessment to Uber in relation to VAT. Assessments must be made within statutory time limits.
Links
IR35: workers are employees, are they not?
Workers’ rights to paid leave will not expire
Employment status (subscribers)
Check Employment Status for Tax (CEST)
Personal service company (PSC) tax
Agency Workers: employment intermediaries rules (subscribers)
External link: Uber B.V. Uber London Ltd and Uber Britannia Ltd v Mr Y Aslam Mr J Farrar Mr R Dawson and Others [2017] UKEAT 0056
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