When Messrs Farrer and Asleem were successful in their tribunal many thought that was the end of the matter. Uber appealed the tribunal decision, which was dismissed. The appeal was then dismissed at the Court of Appeal, and most recently at the highest court in the land - The Supreme Court.

Those Uber drivers are now classified as workers.

We know (continuing on from my last PHTM article) that Uber proceeded to issue a press release, superficially offering worker status to all who want it. That statement hasn’t yet stood the test of closer inspection of what is really happening to Uber drivers.

We know that the decision will (might?) have wider conse- quences to the gig economy. Will we eventually have delivery drivers waiting outside a fast-food joint to deliver its hot steamy fare, being entitled to minimum wage? Well, Deliveroo’s investors certainly think so. The app currently depends on having thousands of workers on unpaid standby.


David Harmer, Markel’s Groups Status Expert Supremo points out: “The drivers’ subordination to Uber, resembles the ‘dependent contractor’ outlined in Matthew Taylor’s 2017 ‘The Taylor Review of Modern Working Practices’. Uber’s structure only allows drivers to increase earnings by work- ing more jobs, which drivers are less likely to do if waiting time were paid. As has happened during the pandemic, drivers waste time and petrol without any financial compen- sation when there are fewer jobs.”

Aside from this, many think this will, or should open the doors for the HMRC. Employment lawyer and expert Darren Newman highlighted in his piece ‘End of The Road’ that it is time for HMRC to take on the score of a lifetime: “Now that we know for sure that Uber drivers are workers, compliance officers can set about the task of assessing whether or not Uber has complied with their obligations (shouldn’t be tricky – they clearly haven’t) in respect of the minimum wage and set about calculating the amount of arrears that are due. They should then issue what might be their biggest ever Notice of Underpayment – plus a penalty of up to £20,000 per worker.”

If no action is taken, HMRC risks losing all credibility, seen to be focusing on squeezing the little guy instead of going after the real crooks. If HMRC can get Uber to cough up,


then Uber drivers will have more confidence claiming against the tech behemoth. It is a double loss for Uber and a double win for workers’ rights.

Charlie Thompson, employment partner at Stewarts Law, believes that little will actually change: “Other gig economy businesses and workers will take notice, and we may see a spike in claims, but because every employment case is decided on its own facts, we will still see arguments that all business shouldn’t be treated like Uber.”

Two gig economy businesses are never the same, with the technology commonly the differentiating factor, even if drivers or users obtain jobs in the same way.

From a legal point of view, the rights of drivers as workers is significant. Uber is no longer allowed to define those that work for them in the way that most benefits them - that cannot be discounted. Uber is forced to admit that their drivers actually work for them, which is significant.

Co-lead claimant James Farrar, made an emphatic statement about the dream that Uber sells to drivers: “Uber drivers are cruelly sold a false dream of endless flexibility and entrepreneurial freedom. The reality has been illegally low pay, dangerously long hours and intense digital surveillance.”



Although the drivers were free to determine when and where they worked, the Supreme Court highlighted five points from the tribunal’s judgement as worthy of note:

1) The remuneration was fixed by Uber: drivers could not determine how much passengers were charged.

2) Not only was Uber’s agreement with the drivers entirely dictated by Uber, so too were the terms on which drivers transport passengers.

3) Uber, not the driver, retains absolute discretion about whether it accepts a ride: the driver is not informed of a destination until a job is accepted, removing their right of refusal due to drop-off location. Moreover, the driver is penalised if they refuse too many jobs.

4) Uber exercises a significant degree of control over the way in which the driver provides services, with rating systems tantamount to performance management.

5) Uber restricts communication between driver and passenger: it is Uber’s passenger, not the driver’s.

MAY 2021

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