Worker Status in the Driving Seat: Uber in the Supreme Court
The much-anticipated judgment of the Supreme Court in Uber BV v Aslam [2021] UKSC 5, confirming that Uber drivers are workers under UK employment law, will have considerable ramifications for the ‘gig economy.’ Encompassing any form of work dependent upon digital work intermediation to connect customers to service providers, the ‘gig economy’ shows no sign of slowing down — the number of people working within the ‘gig economy’ doubled between 2016–2019. Faced with increasing demands for greater legal protection, the Supreme Court’s judgment goes a long way in redressing the “paradox of precarity” underpinning this form of work, whereby those engaged in already precarious work are subject to even more precarious legal protection. However, whilst the judgment has propelled UK employment law towards a more purposive and inclusive approach to what it means to be a “worker” with employment rights, the Supreme Court’s ruling represents but one victory in what is sure to be a lengthy struggle for substantial legal protection for an increasing number of ‘gig workers.’
From Independent Contractors to Workers
To qualify as a worker under UK employment law, an individual must either be under a contract of employment or be “under a contract in which said individual undertakes to perform personally work or services for another who is not a client or customer of individual’s trade or business.” The issue at hand in Uber was whether the claimants were working under contracts with Uber London, thus benefiting from worker status, or if they were performing services solely for passengers with whom they had contracted with individually.
Uber’s terms and conditions, which are littered with references to freedom of choice, determined Uber drivers as ‘independent contractors’ for the purposes of UK employment law. This had the effect of barring Uber drivers from enjoying statutory protections covering the minimum wage, paid holiday leave and the right to be protected for whistleblowing. However, the respondents in Uber, individuals who work or worked as private hire vehicle drivers, sought to challenge this assumption by relying on a broad reading of the employment law definition of a worker, in line with the purposive approach previously adopted by the Supreme Court in Autoclenz v Belcher & Ors [2011] UKSC 41. In that case, Lord Clarke went beyond the terms of the written employment contract, looking to “all the circumstances of the case” to determine worker status.
Clarifying the rationale behind this holistic approach, the Supreme Court’s judgment in Uber makes clear that this approach stems from statutory, rather than contractual, interpretation. If the purpose of the employment legislation invoked by the respondents is to “protect vulnerable workers”, the Supreme Court boldly stated that it would be “inconsistent with the purpose of this legislation to treat the terms of a written contract as a starting point” in determining worker status. As such, the Court reaffirmed the primacy of statutory protection over the written employment contract. If employers in the ‘gig economy’ can no longer contract out of labour protections guaranteed in statute, the Supreme Court’s ruling will go a long way in mitigating the effects of the ‘paradox of precarity.’
Moreover, the ruling has left judges with a sufficiently wide margin of discretion to consider the relevant facts of a case in light of the purpose of the relevant legislation when determining worker status. Approaching the question of whether or not the drivers and Uber London were in an employment relationship as “a question of fact”, the Supreme Court identified five factors that pointed towards the existence of such a relationship: the rate of remuneration as determined by Uber, the contractual terms as determined by Uber, the driver’s decision to accept a ride as determined by Uber, the degree of control as exercised by Uber over the way in which drivers deliver their service and the extent to which Uber restricts communication between the passenger and the driver. As is apparent, the common thread is control; the characterisation of Uber drivers as ‘independent contractors’ becomes increasingly untenable the more control Uber exerts over them.
Finally, the Supreme Court acknowledged that working time, for the purposes of UK employment law, was to be counted as time spent “on duty ‘logged on’” to the app rather than during rides. This broad view of working time demonstrates how the unanimous judgment correctly grapples with the socio-economic realities of the ‘gig economy’ whilst creating a sufficiently flexible legal framework for future disputes. The Supreme Court has demonstrated that UK employment law has the potential to keep up with the rapidly shifting nature of the ‘gig economy’.
Driving Forward: The Need for A Holistic Approach
The Uber decision undoubtedly represents a significant advancement in UK employment law. However, in order to sit within a broader legal framework that affords equal protection to the various types of ‘gig workers,’ UK employment law must be more willing to adapt and conform to international labour law standards.
In 2017, the Central Arbitration Committee, a body that hears collective workplace disputes, denied granting worker status to Deliveroo riders on the basis that a valid contractual clause gave Deliveroo riders the ability to substitute their work to another person. This had the effect of negating a fundamental requirement necessary to obtain worker status in UK employment law: personal work. Consequently, the right of the riders to collectively bargain was denied. On appeal to the High Court, the Independent Workers of Great Britain union argued that the court was under a duty to interpret the employment definition of a worker in line with Article 11 of the European Convention on Human Rights (ECHR), which provides for the right of assembly, including collective bargaining.
To fall under Article 11, an employment relationship needs to be established. According to the International Labour Organisation (ILO), an employment relationship is determined by considering a range of factors including control, integration, personal work and working mainly for the benefit of another. This has the effect of minimising the importance of the personal work requirement, an integral part of the worker status test in UK employment law, into a subsection of a broader understanding of what constitutes an employment relationship. Regrettably, the High Court refused to engage Article 11 as the Uber riders did not qualify for worker status under UK employment law due to the valid substitution clause in their contract. Absent of an employment relationship, Article 11 was thus unavailable to the riders. Not only did the High Court miss a prime opportunity to interpret worker status in line with ILO labour law standards, but they also appeared to cement an outdated interpretation of the worker status test in UK employment law to the detriment of the riders’ human rights claim.
Conclusion
Whilst we await the Court of Appeal’s decision in the Deliveroo case, the approach of UK employment law towards ‘gig workers’ appears to be in a state of flux. The Supreme Court’s judgment in Uber represents the most authoritative decision to date on the employment status of ‘gig workers.’ It is a welcome and much needed step in the right direction. However, due to the dominance of the personal work requirement in UK employment law and the courts’ unwillingness to align the UK with international labour law standards, Uber drivers and Deliveroo riders now enjoy different levels of protection. The asymmetrical legal position of both groups of ‘gig workers’ seems to be at odds with the very similar employment realities they both face. If the ruling in Uber is to be lauded as a turning point in UK employment law, it must be accompanied by a holistic approach to granting legal protection to all ‘gig workers’, inspired by international standards.
Jonathan is a final year Law and French student at the University of Bristol. His interests include employment law, in a comparative and national context, tort law and French literary criticism.
