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Gig economy Uber drivers are ‘workers’ - what’s it mean for you?

DRIVERS WHO work via the minicab-hailing app Uber are defined as "workers" not "self-employed" and therefore have rights including holiday pay and minimum wage, the UK Supreme Court ruled today. Some of these drivers are expected to get compensation in the region of £12,000 each as a result of this judgment.

The UK Supreme Court at night

Taxi for Their Lordships! - the UK Supreme Court at night

The 19 February Supreme Court ruling in the case Uber BV and others v Aslam and others is likely to have repercussions for the millions of precarious workers who struggle to make a living through the various "gig economy" apps, who are among the "false self-employed" - self-employed in name only for the convenience of the entities engaging them. Improvements in the conditions of these workers may in turn have a beneficial effect on those of us who are genuine freelances by choice.

The Supreme Court judges upheld earlier judgments by the Employment Appeal Tribunal and the Court of Appeal and dismissed Uber's appeal against these. In its 43-page ruling, the panel of Supreme Court judges unanimously dismissed Uber's claim in its contracts to be merely a "third party" in a contractual relationship between the driver and a passenger who uses its app. The judgment stated that an "agency relationship" (in this case between Uber and the driver) "need not be contractual" to exist.

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The case arises from an Employment Tribunal case brought by Yaseen Aslam, co-founder of the United Private Hire Drivers, a branch of the IWGB union and President of the App Drivers and Couriers Union, together with UPHD Chair James Farrar. Some 2000 other private hire drivers are associated with the case.

The Supreme Court was critical of the "service agreements" that Uber gave its private hire drivers to sign, which the Court felt "can be seen to have as their object precluding a driver from claiming rights conferred on workers by the applicable legislation".

The Supreme Court found that drivers for Uber were "workers" and that they were "at work" - and entitled to pay - whenever they were logged into to the Uber app to signal their availability for work, not just when they were actually driving an Uber passenger.

The Freelance isn't aware of any of its members doing journalistic work via platforms such as Amazon's MTurk or Fiverr. (Do contact us - in confidence - to tell us about your experiences if you do work for or through these platforms.) However, we are aware of some members who do work as private or delivery drivers via apps as an occasional "side-hustle" in an attempt to make ends meet.

But this judgment is likely to have an impact beyond work through apps. It is likely to assist some freelances who do regular work for a client, such as "casuals" who do regular shifts and "PAYE freelances" who are – according to their contract – self-employed but are, for example, paid via the payroll, sometimes with deductions at source.

The seven judges reiterated four key principles that apply in determining that these people have rights as workers:

  • the remuneration paid to drivers for the work they do is fixed by Uber and the drivers have no say in it;
  • the contractual terms on which drivers perform their services are dictated by Uber;
  • although drivers have the freedom to choose when and where... to work, once a driver has logged onto the Uber app, a driver's choice about whether to accept requests for rides is constrained by Uber; and
  • Uber exercises a significant degree of control over the way in which drivers deliver their services.

The principles set out here will, we confidently predict, be cited in many future cases in courts and tribunals. The principle, expressed throughout the judgment, that it's important what clients do, not what they put in the contract, will be useful too.

The legal basis for the ruling is the Employment Rights Act 1996 and the Working Time Regulation. The latter is a piece of EU legislation, brought into UK law, which post-Brexit the current UK government now reserves the right to tear up. The government recently won a vote in Parliament not to guarantee current workers' rights in the UK based on EU legislation. There is also talk of a government "review" of workers rights and employment status, which given the character of the present government is very bad news. On the other hand, there have been reports that this review was ditched before it started. The Freelance is monitoring developments.

A long campaign

Fairdeal4freelances

The NUJ's Fair deal for freelances campaign calls for freelances to get holiday pay, parental leave and allowances and a retirement pension.

This ruling is a tribute to the campaigning stamina of the GMB and IWGB unions. Meanwhile the NUJ's Freelance Charter, launched in November, calls for freelances to get holiday pay, parental leave and allowances and a retirement pension. They should have the right to resist companies forcing them on to PAYE, to incorporate as a limited company, or work under umbrella companies.

Please see in particular the NUJ campaign leaflet Should you be getting paid holiday? and the advice on Holidays and holiday pay.

  • Shortly before the UK Supreme Court judgment, a court in Amsterdam ruled that riders with food delivery service Deliveroo NL, a subsidiary of the UK-based food ordering app Deliveroo, were employees not "self-employed", with the right to demand collective contracts.
  • Workers who are not employees are not entitled to sick pay.