WorkLife

Our thoughts on the world of employment law - and beyond.

A Shakespearean Tale? The Uber Employment Tribunal case decision – featuring Queen Gertrude

Well, well, well – Ian, the Black Cab Driver, who was born just off the Caledonian Road and who drove me home from the office late last night you are absolutely correct – the Employment Tribunal "is not silly", they know what a taxi driver is when they see one and, most significantly, they have decided that Uber drivers are not genuinely self-employed and are in fact "workers".

The Employment Tribunal did not go so far as to say that the two Uber drivers were working in conditions of "modern-day slavery", as suggested by Ian, and they were not asked to determine whether or not the Uber drivers were employees, but they did agree with Tom Linden QC's arguments that the two Uber drivers who brought their case are "workers" within the meaning of s.230 of the Employment Rights Act 1996.

The significance of this judgment is that as workers, Uber drivers will be entitled to:

  • 5.6 weeks' paid annual leave per year (equivalent to 28 days' leave including Bank Holidays)
  • a maximum 48 hour average working week
  • statutory minimum daily and weekly rest breaks
  • the national minimum wage and national living wage
  • protection under the 'whistleblowing' legislation
  • protection against unlawful discrimination
  • not to be treated less favourably if they work part time
  • protection against unlawful deductions from wages

Workers do not have the same rights as employees, as workers are not entitled to statutory employment rights such as: unfair dismissal, statutory redundancy payments or TUPE protection. Even so, the implications for Uber are significant in that a requirement to pay a driver the minimum wage and 5.6 weeks' holiday per year is not to be sniffed at – particularly given the sheer volume of Uber drivers on the roads in the UK.

What next?

It is inconceivable that Uber will not seek to appeal this decision, I believe they have already said that they will appeal, and the appeal will be fascinating to follow. In the meantime, this decision will also have far broader significance than Uber drivers, as the "gig-economy" spreads far and wide and there is no doubt that the significance of this case will be picked up by anyone working under similar terms and conditions. Following hot on the heels of the announcement earlier this month that the Prime Minister has engaged Matthew Taylor (previously head of the No 10 Policy unit under Tony Blair) to lead a review of workers' rights and practices, this case comes at a particularly relevant time and will be followed closely.

I do not normally recommend reading Employment Tribunal decisions as the most pleasurable way to spend a Friday evening, but on this occasion I commend it to you. Following a quick skim-read of the decision it has something for everyone: excellent arguments made by Mr Reade (for Uber) and Mr Linden (for the drivers, supported by the GMB union), a hard fought legal dispute, a David vs Goliath struggle and victory for the underdog, brilliantly summed up by the Tribunal Judge Mr Aslam in, at times, highly amusing terms, quoting Shakespeare – Hamlet's mother no less. If nothing else, for anyone who intends to take a taxi within the next 12 months, I suspect it will be essential reading!

I will leave you with my favourite quote from the Employment Tribunal's Decision in paragraph 87:

"We have been struck by the remarkable lengths to which Uber has gone in order to compel agreement with its (perhaps we should say its lawyers') description of itself and with its analysis of the legal relationships between the two companies, the drivers and the passengers ... Reflecting on the Respondents' general case, and on the grimly loyal evidence of Ms Bertram in particular, we cannot help being reminded of Queen Gertrude's most celebrated line:

"The lady doth protest too much, methinks". Hamlet, Act III, sc2.

Employment law is brilliant. It is real, it is relevant, and it is alive and kicking.

Link to the case can be found here.

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