Uber BV ("UBV") & Ors v Aslam & Ors

Factual and Procedural Background

The Claimants are current or former drivers operating in London using a smartphone application ("the App") owned by a Dutch parent company, Company A, which holds the intellectual property rights. The UK registered company, Company B, holds the Private Hire Vehicle ("PHV") Operator Licence for London and operates the PHV business, including accepting and managing bookings. A third company holds PHV Operator Licences outside London but was not involved in the evidence or argument.

The Claimants brought claims under the Employment Rights Act 1996 ("ERA"), the National Minimum Wage Act 1998 ("NMWA"), and the Working Time Regulations 1998 ("WTR") alleging failure to pay minimum wage and to provide paid leave. Some claimants also raised whistleblowing detriment claims. Company A and its affiliates ("Company A group") denied that the Claimants were "workers" entitled to statutory protection and challenged jurisdiction.

The Employment Tribunal ("ET") held a preliminary hearing in 2016 to determine worker status and jurisdiction issues. The ET decided that English law applied, the Claimants were "workers" employed by Company B, and their working time included periods when they had the App switched on in their authorized territory and were ready and willing to accept trips. The ET also found the Claimants engaged in "unmeasured work" for minimum wage purposes.

The Claimants appealed to the Employment Appeal Tribunal ("EAT"), which dismissed the appeal in 2017, upholding the ET's findings that the Claimants were workers of Company B despite the written contractual documentation. The EAT applied the principles in Autoclenz Ltd v Belcher and emphasized assessing the reality of the working relationship over contractual labels.

The Company A group then appealed to the Court of Appeal, challenging the ET and EAT conclusions that the Claimants were workers employed by Company B during periods when the App was switched on and they were available for work.

Legal Issues Presented

1. Whether the Claimants are "workers" within the meaning of section 230(3)(b) of the Employment Rights Act 1996, engaged under contracts with Company B, entitled to statutory protections.
2. Whether the written contractual documentation between the Claimants and Company A group reflects the true nature of the working relationship or can be disregarded under Autoclenz Ltd v Belcher principles.
3. At what times the Claimants should be regarded as working for Company B for the purposes of the Working Time Regulations and National Minimum Wage calculations (i.e., whether availability time with the App switched on counts as working time).
4. The effect and relevance of the regulatory and licensing regime governing private hire vehicle operations in London on the determination of worker status.

Arguments of the Parties

Appellants' Arguments

• The ET erred in law by disregarding the written contractual documentation, which showed no contract between the Claimants and Company B but only between drivers and Company A and passengers.
• The ET wrongly relied on regulatory requirements as evidence of worker status.
• The ET made inconsistent and perverse findings of fact about the Claimants' obligations to work for Company B.
• The ET failed to consider evidence indicating that Claimants operated businesses on their own account and were not workers.
• The contractual terms explicitly state that Company A is a technology provider and not a transportation provider, and that drivers contract with passengers directly.
• The regulatory regime and industry practice support the intermediary model where Company B acts as a booking agent, not an employer.
• The Claimants are only workers from the moment they accept a trip or carry a passenger, not during availability time.

Respondents' (Claimants') Arguments

• The Claimants are workers of Company B under section 230(3)(b) of the ERA because they provide services personally and are integrated into Company B's transportation business.
• The written contractual documentation is a sham or does not reflect the reality of the relationship, and the ET was entitled to disregard it under Autoclenz Ltd v Belcher.
• Company B exercises significant control over the Claimants, including recruitment, trip acceptance requirements, performance management via ratings, fare setting, route setting, and disciplinary sanctions.
• The regulatory and licensing regime confirms Company B's role as the PHV operator responsible for accepting bookings and ensuring compliance, consistent with an employment relationship.
• The Claimants are working for Company B throughout the period they have the App switched on, are in the authorized territory, and are ready and willing to accept trips, not only when carrying passengers.
• The intermediary model does not reflect the reality of the contractual and practical arrangements between the parties.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by acknowledging the explicit terms of the written agreements between Company A group and the drivers, which portrayed Company A as a technology provider and intermediary, with drivers contracting directly with passengers. However, applying the principles from Autoclenz Ltd v Belcher, the Court emphasized that tribunals may disregard contractual terms that do not reflect the reality of the relationship, especially where there is a disparity in bargaining power and standard-form contracts.

The Employment Tribunal's factual findings demonstrated that Company B exercised significant control over the drivers, including recruitment, monitoring, discipline, fare setting, and trip acceptance enforcement. The drivers were integrated into Company B's business, which marketed transportation services under its own brand, and drivers were not free to negotiate fares or establish direct business relationships with passengers. Drivers could not contact passengers except through the App and were subject to performance management via ratings and penalties for cancellations or refusals.

The regulatory framework reinforced Company B's role as the licensed PHV operator responsible for accepting bookings and providing fare estimates, which was inconsistent with the drivers acting as independent businesses contracting with passengers. The Court found the contractual documents to be artificial and inconsistent with these realities, justifying their disregard under Autoclenz.

The Court rejected the argument that the drivers only became workers when carrying passengers, holding that the period during which the drivers had the App switched on, were in the authorized territory, and ready and willing to accept trips constituted working time. This was essential to maintaining the service and fulfilling Company B's business model. The Court acknowledged complexities regarding multi-apping and working for other platforms but considered the ET's factual findings reasonable.

The Court distinguished the present case from prior cases involving minicab drivers or other intermediaries where drivers had no obligation to accept work or were clearly independent contractors. It also noted that the contractual terms between drivers and Company A group were not determinative where they did not reflect the reality of the working relationship.

One Judge dissented, agreeing with the written contracts and the intermediary model, concluding that the drivers contracted directly with passengers and not with Company B. This dissent emphasized that Autoclenz does not permit rewriting contracts simply because they are disadvantageous and that the ET's factual findings did not establish an inconsistent reality justifying disregarding the written terms.

The majority dismissed the appeal, upholding the ET and EAT decisions that the Claimants were workers employed by Company B for the relevant periods.

Holding and Implications

The Court held that the Claimants are workers under section 230(3)(b) of the Employment Rights Act 1996, engaged under contracts with Company B, and entitled to the protections of the ERA, NMWA, and WTR. The Court affirmed that the written contractual documentation could be disregarded where it did not reflect the true nature of the working relationship, applying the Autoclenz Ltd v Belcher principles.

The Court further held that the period during which drivers have the App switched on, are within their authorized territory, and are ready and willing to accept trips constitutes working time for the purposes of the Working Time Regulations and the National Minimum Wage Regulations.

The direct effect of this decision is that Company B is responsible as the employer for the Claimants during these periods, entitling the drivers to statutory protections, including minimum wage and paid leave. The Court did not establish new precedent beyond applying existing legal principles to the facts, and noted that any broader policy considerations regarding the gig economy and employment status are matters for Parliament.