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SupReMe cOuRt RuleS ubeR dRiveRS ARe WORKeRS As you are no doubt aware, the Supreme Court finally passed judgement on the long running Uber worker status case on 19 February 2021. The Court ruled against Uber, upholding the original decision of the Employment Tribunal.


We have decided to highlight the key factors that the Supreme Court considered in their judgement that are inherently relevant to private hire operators:


• The Supreme Court all but disregarded the written contracts that Uber presented to support their argument that their drivers were self-employed. Instead, it highlighted the importance of considering all of the circumstances of the case, of which the written agreements only formed a part.


• Uber dictated the fares drivers earned for completing a booking through their app, and drivers could not influence the amount they could earn from a booking.


• Uber unilaterally imposed the terms of the contract between the driver and Uber; the driver had no say in the terms of the agreement.


• Once the driver had logged onto the Uber app, Uber were held to be constraining the drivers’ rights to accept and reject bookings. Uber did this by monitoring acceptance rate of the drivers and penalised the drivers for rejecting bookings by imposing a ten-minute log off.


• Uber exercised significant control over the way drivers provided their services of which there were several methods. The Supreme Court mentioned the use of a 1-5 scale rating system. If a driver failed to maintain the expected customer rating, then Uber served the driver a series of warnings. If the driver’s rating still did not improve Uber terminated the relationship with the driver.


• The final significant factor was that Uber restricted communication between the driver and passenger. It was held that Uber prevented the driver from estab- lishing a relationship with a passenger beyond a single ride.


Furthermore, the Supreme Court held that the transportation service performed by drivers and offered to passengers through the Uber app was very tightly defined and controlled by Uber. Drivers were in a position of subordination and dependency in relation to Uber such that they have little or no ability to improve their economic position through professional or entrepreneurial skill. In practice the only way in which they could increase their earnings was by working longer hours while constantly meeting Uber’s con- straints and measures of performance.


MAY 2021


A very curious comment by the Supreme Court was that the ‘working time’ of the drivers was not while the wheels were turning (completing bookings), but as soon as the driver logged into the app.


Uber is ultimately left with no further actions, as due to Brexit, it is unlikely the UK courts would assign weight to judgements from the Court of Justice of the European Union (“CJEU”) should Uber wish to appeal it to the CJEU.


OUR TAKE


In our opinion, this judgement is quite narrow as it mostly focuses on Uber’s interaction with the drivers. That is not to say that this judgement will not have a knock-on effect on the rest of the private hire industry.


We believe that this decision will open the flood gates for unions and solicitors alike to try and follow up this successful worker status claim with subsequent claims against private hire operators (PHOs) - especially in cases where PHOs have been exercising any form of control on drivers.


We recommend that PHOs to take this opportunity to take stock of their own working practices. Furthermore, we encourage operators to consider undertaking a cost-benefit risk assessment of their working practices in order to identify and address any potential working practices that could give rise to grounds for a worker status claim.


We would like to reiterate that a distinction needs to be made between a massive multinational corporation, such as Uber, that develops its own software and technology, and a regional/local PHO which has developed its business from grassroots of pen, paper and radios, to using third party dispatch systems and smartphone apps to compete in the ever-changing market.


We appreciate that the private hire industry as a whole is facing itself at a crossroads. Given that the majority of statutory regulation is antiquated and not fit for purpose, case law such as the Uber judgement is now paving the way forward for new industry practices and subsequently impacting the ‘gig economy’ also.


If you’re unsure whether your business’s practices could leave you liable to a worker status claim or require further advice, please call Conor on: 01743 298460, email: admin@taxilaw.co.uk or see our advert on page 59.


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