Two representative Uber drivers brought worker status claims against Uber London (ULL) and Uber BV. Uber BV owns the Uber app while ULL is the personal hive vehicle (PVH) operator and, as such, is tasked with ensuring Uber meets its regulatory requirements, accepts the bookings made on the app and deals with complaints made by passengers. Uber argued that it was purely a technology company, not a transport business and that the drivers were self-employed independent contractors who worked in business on their own account, contracting with the passenger each time they accepted a trip. The tribunal found that in reality the arrangements and controls implemented by Uber pointed away from the contractual documentation. Accordingly the tribunal found the drivers were workers, not independent contractors. The EAT rejected Uber’s arguments that it was simply the agent and found the drivers were workers. The EAT confirmed that the tribunal was entitled to take into account the scale of the Uber business (30,000 individual drivers in the London area) and the evidence before it of how the drivers were integrated into it in; the reality was that the drivers could not grow their businesses, had no ability to negotiate terms with passengers (save to agree a fare reduction) and had to accept work on Uber’s terms.
In contrast, in a recent decision by the Central Arbitration Committee (CAC) in relation to an application for union recognition, Deliveroo riders were found not to be workers because they have a genuine right to “substitution”, meaning that they are allowed to get anyone else to deliver food on their behalf. The CAC concluded that this right to substitute was not a sham and accepted evidence that riders had used it in practice.
These cases will be of interest to other gig economy platforms. Similar claims against Excel, Addison Lee and City sprint have all been successful at tribunal level. The Uber decision does not change the law and the conclusions reached by the court are wholly dependent on the specific facts of the case. A different business model (such as one which gives more control to the individuals to build their own business and take on the risks) might have yielded different results. But unless the contractual terms reflect the reality of the operation, the court will disregard them when seeking to establish the true nature of the relationship between the app provider business and the individuals providing services to its business.