In December 2018 the Court of Appeal made the latest ruling in the long running case to decide whether Uber drivers are workers or self-employed independent contractors.

This is important because workers have significant statutory rights, including the right to receive the National Minimum Wage and holiday pay. In a majority decision the Court of Appeal found the Uber drivers were workers.

The Court of Appeal found that:

  • The drivers were workers, rather than independent contractors, despite Uber’s contractual documentation stating otherwise.
  • The drivers had been working for Uber as part of its business rather than being in an agency relationship based on the facts of the case.
  • The drivers were “working” while waiting for a trip request (i.e ready and willing to accept trips in the relevant territory with the Uber app switched on).

This decision supports existing authority that it may be legitimate to disregard express written terms where they do not describe the true agreement, even when it cannot be shown that both parties intended a sham. For businesses operating in the “gig economy” no matter how contracts are drafted the Employment Tribunal can look beyond the written documents to look at the true nature of the working relationship.

This is unlikely to be the end of the matter because Uber were granted permission to appeal to the Supreme Court. It is also interesting that the decision of the Court of Appeal was a majority decision – Lord Justice Underhill (a former President of the Employment Appeal Tribunal) disagreed on both whether the drivers were workers and when they were working. This will make for a fascinating case in the Supreme Court if (and more likely when) Uber appeal.

The full case can be read here: Uber BV, Uber London Ltd, Uber Britannia Ltd v Aslam, Farrar and others [2018] EWCA Civ 2748


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