Monday 20 July 2020 4:35 pm

Uber faces final Supreme Court appeal to argue drivers are not employees

Uber will tomorrow begin one final attempt to overturn a ruling that means it must treat its drivers as “workers” in what could be a landmark case for UK employment rights.

The ride-hailing app has already been defeated on the two previous occasions it has tried to challenge the ruling, which was first made in 2016.

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In that case, the Employment Tribunal ruled in favour of 35 drivers led by James Farrar and Yaseen Aslam, who claimed that they were “workers” and should be entitled to  basic protections including the national minimum wage, holiday pay and protection against discrimination.

Uber will argue that it is not an employer but instead a platform or agent which connects self-employed drivers to passengers via its technology.

Under “worker” status, drivers still count as self-employed but will qualify for the basic protections outlined above.

Law firm Leigh Day, which is representing the drivers at the Supreme Court hearing, said that if Uber loses its appeal its drivers could be entitled to £12,000 in compensation on average, as well as basic protections.

The decision could have huge ramifications for the “gig economy”, with approximately 4.7m people in the UK employed under such contracts.

Nigel Mackay, a partner at Leigh Day, told City A.M.  he could see “no reason” why the Supreme Court would rule against the drivers.

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“There’s no reason why the Supreme Court should deviate from [the previous decision} and it‘s important they don’t because there has been such an explosion of gig economy businesses. 

“It’s likely that lots more people in the future will sign up to work through apps and so on. Employment law should protect that in the same way that everyone else is protected”.

Lawyers at Bates Wells, who are also representing the drivers, said that the case would hinge on whether “the written contract that Uber has with its drivers reflects the reality of its relationship with the drivers”.

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Partner Paul Jennings said that in the Employment Tribunal ruling the judge accused Uber of using “twisted language” in its contractual documentation and a “high degree of fiction in the wording” of Uber’s contracts in the Court of Appeal case.

Commenting on the case, Jamie Heywood, Uber’s general manager for northern and eastern Europe, said: 

“The vast majority of drivers want to work independently, and over a number of years we’ve made significant changes to our app to offer more benefits with total flexibility. 

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“Drivers can determine if, when and where they drive, but can also access free AXA insurance to cover sickness or injury, as well as maternity and paternity payments.”

Mackay told City A.M. that these new benefits “suggests that Uber understands that it has employment responsibilities to its drivers, but it but it wants to pick and choose the ones it gives them”.

He said: “The whole point of employment law is that there’s a base set of rights that everybody has to make sure that people don’t fall through the cracks. 

“It’s not enough to say ‘We’ll provide some insurances’. So I don’t think that helps Uber at all from a legal perspective”.

The decision is not expected for a number of months. In the meantime, Uber is also facing a battle over its license to operate in London, with its appeal now set for 14-17 September after the coronavirus prevented the case from being heard on 6 July.

Speaking to City A.M.’s podcast, Heywood said that he was “optimistic” that the firm would win back its license in the appeal.

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Uber’s drivers also today launched another legal challenge in an attempt to work out how the firm’s algorithms pair drivers with ride requests.

The App Drivers and Couriers Union is seeking to make the firm more transparent about how the data it collects impacts drivers over fears of favouritism.