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03 January 2019

Uber loses appeal, but gains first judicial support

The Court of Appeal has upheld the decision of the EAT that Uber drivers are “workers” and therefore entitled to certain rights, such as the national minimum wage and paid annual leave.

It found that the Tribunal was entitled to reject Uber’s contention that its business was providing a technology platform facilitating taxi services rather than actually providing transport. The Tribunal was also right to look behind the complex contractual documentation and focus on the reality of the working arrangements. It agreed with the Tribunal that Uber is a transportation business and the drivers provide the skilled labour through which that business delivers its services and earns its profit.

The CA also found that the Tribunal was entitled to reach the conclusion that an Uber driver is to be regarded as working for the purposes of the national minimum wage and working time provisions when he or she has the app switched on, is in the territory they are licensed to work in, and is ready and willing to accept trips.

This is all very familiar so far, but an interesting aspect is that the judgement is a majority ruling, with Lord Justice Underhill dissenting on both issues set out above.  In his view, there was no need to look behind the contracts as they did in fact reflect the working arrangements. He also considered that drivers should only be treated as working from the moment they accept a particular trip, rather than while on the app, waiting.

The Court of Appeal have granted permission to Uber to appeal. Given the potential costs involved across the workforce, and the dissenting view of Underhill to support them, the company may consider they still have something to fight for in the Supreme Court.


For more information please contact Nick Hurley.

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