Employment: Definition of Worker

In an employment situation, the parties to the agreement were frequently of unequal bargaining power.

In determining whether someone fell within the definition of a “worker”, the primary question was one of statutory interpretation, not contractual interpretation.

The Supreme Court today unanimously affirmed these principles: Uber BV and others (Appellants) v Aslam and others (Respondents) [2021] UKSC 5   Lord Reed (President), Lord Hodge (Deputy President), Lady Arden, Lord Kitchin, Lord Sales, Lord Hamblen, Lord Leggatt

Explaining its decision in Autoclenz[1], the Court emphasised that the correct approach was to consider the purpose of the relevant employment legislation.

That purpose was to give protection to vulnerable individuals who had little or no say over their pay and working conditions because they were in a subordinate and dependent position in relation to a person or organisation which exercised control over their work.

The definition of “worker” in section 230(3) of the Employment Rights Act 1996 and other relevant legislation included anyone employed under a contract of employment, but also extended to some individuals who were self-employed.

In particular, the definition included an individual who worked under a contract “whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”

Uber’s argument that its drivers were independent contractors working under contracts made with customers and did not work for Uber, was given short shrift by Lord Leggatt delivering the judgment of the Court.

Five factors justified the findings of the employment tribunal that the claimants were working for and under contracts with Uber.

• Where a ride was booked through the Uber app it was Uber that set the fare and drivers were not permitted to charge more than the fare calculated by the Uber app. It was therefore Uber which dictated how much drivers were paid for the work they did.
• The contract terms on which drivers performed their services were imposed by Uber and drivers had no say in them.
• Once a driver had logged into the Uber app, the driver’s choice about whether to accept requests for rides was constrained by Uber.
• Uber also exercised significant control over the way in which drivers delivered their services: e.g. the use of a ratings system whereby passengers were asked to rate the driver on a scale of 1 to 5 after each trip. Any driver who failed to maintain a required average rating would receive a series of warnings and, if their average ratings did not improve, eventually have their relationship with Uber terminated.
• A significant factor was that Uber restricted communications between passenger and driver to the minimum necessary to perform the particular trip and took active steps to prevent drivers from establishing any relationship with a passenger capable of extending beyond an individual ride.

Taking these factors together, drivers were in a position of subordination and dependency in relation to Uber such that they had 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 whilst constantly meeting Uber’s measures of performance.

Furthermore, the time spent by the claimants working for Uber was not limited, as Uber argued, to periods when they were actually driving passengers to their destinations.

It included any period when the driver was logged into the Uber app within the territory in which the driver was licensed to operate and was ready and willing to accept trips.

[1] Autoclenz Ltd v Belcher [2011] UKSC 41