On 10 November 2017, the UK Employment Appeal Tribunal upheld that drivers for Uber in London were Uber's empoyees. The Employment Appeal Tribunal found that there was a contract between Uber and its drivers whereby the drivers personally undertook work for Uber as part of Uber's business of providing transportation services to passengers in the London area.
The Employment Appeal Tribunal was satisfied that the Tribunal first instance had neither erred in its approach nor in its conclusions when rejecting the contention that the contract was between driver and passenger and that Uber was simply the agent in this relationship, providing its services as such to the drivers (Lloyd, “Uber Drivers in London: “To Be Or Not To Be” An Employee?”, CRi 2016, 161-165).

Findings at First Instance

In October last year, the Employment Tribunal found that the Drivers were only working under a contract to personally undertake work or services for Uber as and when they had the app switched on, were within the territory in which they were authorised to work, and were able and willing to accept assignments. Allowing that there could be gaps, when the drivers did not meet these requirements, the Employment Tribunal did not consider that to be fatal to their status as “workers” when they did.

Crucial Issue On Appeal

The Employment Appeal Tribunal had no difficulty with that conclusion in respect of those periods when a driver accepts a trip from Uber. Ultimately, the Employment Tribunal also concluded that the drivers are also workers in between accepting assignments.

Regulation 2(1) WTR requires three elements to be present for the qualification as “working time”: working; at his employer’s disposal; carrying out his activity or duties.

Because of the requirement that a driver “should accept at least 80% of trip requests” to retain their account status implying (more generally) that being “on-duty” means being “willing and able to accept trip requests”, the Employment Appeal Tribunal held that the very high percentage of acceptances required justified the conclusion by the Employment Tribunal at first instance that, once in the territory with the app switched on, Uber drivers were available to Uber and at its disposal even if the evidence allowed that drivers were not obliged to accept all trips (para 124).

If the reality is that Uber’s market share in London is such that its drivers are, in practical terms, unable to hold themselves out as available to any other operator, then, as a matter of fact, they are working at Uber’s disposal as part of the pool of drivers it requires to be available within the territory at any one time (para 126).

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UK Employment Appeal Tribunal, Uber v. Aslam, Farrar, Dawson et al., decision of 10 November 2017

"Uber Black: EuGH-Vorlage zur Zulässigkeit der Mietwagen-App", BGH 18.5.2017, I ZR 3/16

"Schlussantrag des Generalanwalts: Elektronische Plattform Uber ist dem Verkehrssektor zuzuordnen – Grundsatz des freien Dienstleistungsverkehrs gilt nicht", EuGH-Generalanwalt 11.5.2017, C-434/15

Witte, "Der EuGH erklärt, warum UBER in der analogen Welt fährt", CRonline Blog v. 15.5.2017