The employment status arguments in Uber B.V. and others -v- Aslam and others rumble on as Uber takes the case to the Supreme Court. This time though at least it has the benefit of having only lost by a 'split decision' of the Court of Appeal.
Having persuaded one of the appeal court judges to see things their way maybe Uber will feel that the tide is turning after its arguments had previously been roundly rejected in the Employment Tribunal and Employment Appeal Tribunal.
The employment status issue
Those earlier decisions with which the majority of the Court of Appeal agreed threaten the business model that is used by Uber and the other gig economy platforms. The companies say that they enable those that wish an opportunity to carry out work for themselves by providing access to customers through their apps. However the courts have found in Uber’s case that the drivers using the app were not "self-employed" as Uber maintained but were their 'workers' who had legal entitlements to both national minimum wage and holiday pay.
It was only possible for the Judges to reach that conclusion if the written terms of the contract between Uber and the drivers could be disregarded. That is quite a drastic measure and one that the law would only allow if it was found that the contractual terms did not reflect the reality of the working relationship between the parties. In other words the written contractual terms were a sham!
Friction between words and practices?
So were the written agreements a sham? There had been a number of factors highlighted in evidence that appeared to cast doubt on the drivers having self-employed status. Most notably the level of control exercised by Uber which included:
- An interview process for drivers;
- Instructing drivers on the types of vehicle which could be used;
- Preventing access to the app where too many leads were rejected;
- Removing access from drivers with low ratings and
- Prohibiting drivers from exchanging personal details with passengers.
These were considered to be practices that would not be expected where those engaged were self-employed and had led to the conclusion that they were indeed a sham. There was what was described as a “high degree of fiction in the wording” of the contractual documents when it was compared with what took place in practice.
The dissenting appeal court Judge put forward his reasons for finding in Uber's favour in persuasive terms that might well form the basis of their next appeal. He considered that the contractual documents were not a sham but clearly set out that the self-employed drivers provided their services to the passengers with Uber's role being that simply of an intermediary. In his view there was no conflict with what happened in practice. What he highlighted was that the arrangement was in accordance with what was a “well-recognised model” in the private hire car business whereby a central operator would act as an intermediary between drivers and passengers. Whilst in the past that may have taken the form of a central operator taking telephone calls and offering drivers jobs over a radio transmission the change in technology to accessing jobs through an app would still follow the same basic process. As the terms were no contradictions between words and practices the courts could not legally rewrite the terms even if
some might consider that the drivers perhaps deserved the rights afforded to workers. The law did not allow for contractual documentation to be ignored or rewritten to simply rectify a perceived unfairness.
It will be for the Supreme Court sometime next year to decide whether the contractual terms could be legally disregarded but if the points in the dissenting judgment find favour the gig-economy might just have a future yet.