Back in October 2016, in Aslam and others v Uber BV and others 2016, an employment tribunal was held that Uber drivers were “workers” for the purposes of the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998. This potentially gave them an entitlement to various basic employment rights, including paid holiday and the national minimum or national living wage. Uber, which has always maintained that its drivers are running their own individual self-employed businesses, appealed to the Employment Appeal Tribunal (EAT).

The EAT has now dismissed Uber’s appeal in Uber BV and others v Aslam and others 2017 and rejected its argument that its business was that of a technology platform, acting as the agent for drivers by putting them in contact with passengers, and not a transport provider. It has held that the tribunal applied the correct legal principles and was entitled to reach the conclusions that it had. The EAT also approved the tribunal’s findings that the drivers were working for the purposes of the Working Time Regulations 1998 and the National Minimum Wage Act 1998 when they were signed in to the Uber app, within the territory in which they were authorised to work, and were ready, willing and able to accept bookings.

It has been reported that Uber intends to appeal and that it may even seek a “leapfrog” appeal direct to the Supreme Court, i.e. bypassing the Court of Appeal.

Although this case is of interest to gig economy businesses, it is important to bear in mind that the tribunal’s decision, and the EAT’s upholding of that decision, were based on a detailed analysis of Uber’s specific business model and so it is highly fact-specific. Each gig economy case will depend on the particular terms and arrangements agreed and put in place between the parties.

For example, in Independent Workers Union of Great Britain v RooFoods Ltd (t/a Deliveroo) 2017, the Central Arbitration Committee (CAC) has now decided that Deliveroo riders are not “workers”, but are self-employed contractors, for the purpose of the IWGB trade union’s application for compulsory recognition for collective bargaining purposes in respect of a bargaining unit comprising some of Deliveroo’s riders in north London. Trade union recognition is not available to genuinely self-employed contractors and, as such, the trade union’s application has been rejected. The CAC based their decision on the fact that Deliveroo had introduced a new contract which allowed its riders to appoint a substitute to make a delivery on their behalf without seeking Deliveroo’s approval. It thought that this right to substitute was genuine and had been exercised on occasions and therefore the riders did not undertake to perform personally any work for Deliveroo. So, the substitution clause was fatal to the trade union’s argument that the contracts were for personal service (which is necessary for worker status) and it didn’t matter that the clause had been inserted to defeat arguments as to worker status.