Uber (Uber B.V. v Aslam and Others)
Addison Lee (Addison Lee Ltd v Lange and Others)
The first case is the ongoing matter of Uber (Uber B.V. v Aslam and Others) in which the Court of Appeal has upheld the earlier ruling that Uber drivers are workers, that they were working when they had their app switched on and were ready and willing to accept trips.
In 2016, two of Uber’s 40,000 drivers brought, and won, a test case in the Employment Tribunal claiming they were not self-employed but "workers", and therefore entitled to the National Minimum Wage and holiday pay. Contractual documentation signed by the drivers clearly stated that they were ‘self-employed’ but the Employment Tribunal looked past this to the actual relationship between Uber and its drivers. In doing so, it found that the drivers were workers when they were in the territory they had been authorised to drive in, were signed into the Uber app and were ready and willing to accept bookings. The Tribunal also held that the time when they were ready and willing to work counted as working time for the purposes of the Working Time Regulations and National Minimum Wage calculations.
Uber argued that it was just an intermediary platform connecting self-employed drivers with customers. However, the Tribunal ruled that, in reality, the drivers worked for Uber who exercised a significant degree of control over them. Therefore, contractual documentation did not reflect the reality of the relationship and, as such, should be disregarded.
Uber appealed to the Employment Appeal Tribunal but this was dismissed and the Tribunal’s original decision was upheld. On a further appeal, the Court of Appeal confirmed the earlier rulings that Uber drivers are workers.
Is this the final word on this case? It appears unlikely – the Court of Appeal has granted Uber permission to appeal to the Supreme Court and it is expected that Uber will do so.
The second case is that of Deliveroo (R (on the application of the Independent Workers Union of Great Britain) v Central Arbitration Committee) as an application to the High Court for a judicial review of the decision by the Central Arbitration Committee.
This decision came after the Independent Workers' Union of Great Britain (“IWGB”) applied for statutory union recognition on behalf of Deliveroo riders so that they could negotiate with Deliveroo for them on issues of pay, hours and holiday. To achieve recognition, the IWGB had to show that riders were workers. However, the Central Arbitration Committee (“CAC”) ruled that they were genuinely self-employed and therefore not covered by the collective bargaining legislation. According to the CAC, the element of personal service required for worker status was missing because riders could subcontract deliveries and/or send a substitute in their place.
The IWGB applied to the High Court for a judicial review of the CAC decision that Deliveroo riders were not workers but the ruling dismissed a judicial review that aimed to overturn the earlier ruling which confirmed that those working for delivery firm were self-employed. The High Court has held that the right to freedom of assembly and association under Article 11 of the European Convention on Human Rights does not extend the right to collective bargaining to those without a contractual obligation to perform work personally.
Again, this is unlikely to be the last word as IWGB has indicated it will appeal this latest decision. The Deliveroo case is the only gig economy ruling to-date in which individuals have been held to be self-employed rather than "workers".
The third and final case is that of Addison Lee (Addison Lee Ltd v Lange and Others) in which the EAT has ruled that three of Addison Lee’s 3,800 drivers are workers rather than self-employed contractors and should therefore receive the National Minimum Wage and holiday pay.
As with Uber, the contractual documentation stated that drivers were ‘independent contractors’ and under no obligation to accept work. Again, as in the Uber case, this did not reflect the reality. Drivers had to undergo an in-depth recruitment process, work long hours, have company branding on the cars they rented from a company associated with Addison Lee and comply with strict dress code standards. Particularly important, was the fact that whenever they were logged onto Addison Lee’s hand-held computer system, they were automatically deemed to be available for work and when offered work, drivers were expected to accept it. If they refused, they faced the possibility of sanctions. Whilst they were not promised a minimum amount of work for Addison Lee, they were informed that, on average, a driver worked approximately 50-60 hours per week.
Contrary to the wording of their contracts, the Tribunal held that the three drivers were, in fact, workers and not independent contractors.
