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Employment Tribunal Result – Wednesday 19 December

19 December 2018 / United Kingdom

What it means for Uber partners
You may have heard about an employment tribunal case brought by a small group of drivers. Although there will be no changes to the way that drivers partner with Uber at this time, we know there are still a lot of questions about what the case means for drivers who use the app – now and in the future.
This page will keep you up to date with the progress of the case and answer some frequently asked questions. If you have a question and can’t find an answer or would like more detail, please get in touch through the app.
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Partner questions answered

What is the case about?
Drivers use the Uber app as independent, self-employed contractors. This means that drivers can choose if, when and where they drive and are able to make more than a fixed hourly wage, depending on how they choose to use the platform.

A small group of drivers who previously used the app in London took Uber to an employment tribunal claiming they should be treated as ‘workers’ rather than self-employed contractors and are therefore entitled to a guaranteed minimum wage and holiday pay.

In a preliminary hearing, the tribunal ruled in favour of the two drivers after hearing their evidence. We were unsuccessful in our initial appeal against this last year and appealed that decision to the Court of Appeal.

On 19 December 2018, two of the three judges rejected our appeal. Importantly, one judge supported our case and ruled in our favour.
What does this mean for you?
There’ll be no change to your partnership with Uber at this time.

The decision would only apply to the claimants in the summer 2016 case and Uber is applying to appeal the decision to the Supreme Court.
Why is Uber appealing?
Being independent is vital to the Uber app working well for drivers and riders.

We strongly believe that Uber gives people the freedom and flexibility to be their own boss – drivers can choose if, when and where they drive.

Uber does not set shifts or minimum hours – people can switch the app on and off whenever and wherever they wish to. Many people can and do combine driving with Uber with family commitments, starting their own businesses or even driving with other private hire firms.

The overwhelming majority of drivers who choose to partner with Uber do so because of the freedom and flexibility it gives them and they want to remain self-employed – we have been told this time and time again. This independence and flexibility is at risk.

Self-employment in the private hire industry is nothing new, it has been this way for decades. This was recognised by one of the three judges who supported our appeal.
How long will the appeal take?
We have been granted permission to appeal to the Supreme Court. We will be working on this straight away and, the timings for when the case will be will depend on the availability of the Court.
What would ‘worker’ status mean?
Changing to a worker model goes against the flexibility of Uber’s global business model, which is based on independence for drivers and the ability of the Uber app to facilitate affordable travel options across the cities we operate in.

To move to a model like this, it would mean significant changes to the way we operate and would mean we would need to introduce employment-like controls, which we do not believe drivers using our app want. It is not possible to fully understand the impact on drivers, as the law in this area is currently quite uncertain.

This can be seen in the fact the judges in our appeal were not able to agree on the outcome. The UK Government has also recently announced an intention to legislate in this area to provide greater clarity for individuals and businesses.

It is not currently known what a ‘worker’ status would mean, but it is wrong to say the app would be the same as it is today. Some considerations would include:
- Self-employment in the taxi and private hire sectors has been the norm for decades, and remains so, including for competing app-based operators and taxis in the UK. The impact of changing this status is an unknown for Uber and those in the sector.
- In order to guarantee certain minimums, such as minimum wage and the provision of holiday tied to work done, Uber could not continue to allow drivers to choose freely if, when and where to drive. Contractually, the way to do this would likely be to introduce traditional employment-like controls, including setting shifts to some extent and restricting when and how many drivers could log on at given times. This would weaken the genuine flexibility offered by Uber as the less flexible contract would likely need to include fixed, minimum or restricted hours.
- At the moment, drivers keep the full fare after Uber’s 25% service fee. In order to operate a business with all of the controls and management required, the additional costs would need to be built on fares and also the distribution of money made. It is unlikely that drivers would be able to keep the full fare, given that worker status entitles a more set salary or minimum wage only. There may therefore need to be some price variation or removal of driver benefit from dynamic pricing. This is different from the current model, where the interests of Uber and drivers are aligned, as Uber will only make money if a driver completes a trip they have taken using our app.
- To maximise efficiency and revenue, Uber would also need to have more control over where drivers drive and what trips they must take. At present, a driver is entirely free to decline a ride offered, but this can have a negative impact on the money made. As such, Uber would likely need to prevent drivers from turning down rides offered to them.
- We would need to restrict a driver’s ability to drive or work elsewhere. Multi-apping happens right now, but if platforms business are to be required to pay whenever drivers are ‘available’ on their platform (discussed further below), we will need to ensure they are working for us at all times.
Why couldn’t I keep the benefits of being my own boss and also get the benefits of being a worker?
There’s a lot of uncertainty as to what being a worker would mean for drivers and there would be lots of issues to be worked out. We will be supporting the Government’s recommendation to bring in new laws in this area to provide greater clarity to individuals and businesses who want to provide good and flexible work.
What do other drivers think?
While we know some people might prefer the fixed wage and holiday pay that comes with being a worker, a recent opinion poll found the vast majority of drivers would rather keep the freedom and flexibility of being their own boss. In fact, that’s the reason most drivers signed up to Uber in the first place – it is something we are told time and time again.
And what about black cab drivers and other private hire drivers?
Black cab drivers and most private hire drivers have been self-employed for decades. Many long-standing private hire drivers have signed up to Uber because we offer far more freedom and flexibility than many traditional operators. Although this ruling only applies to the claimants in this case and is being appealed, if it was applied to other private hire operators (or to some of the apps taxi drivers use to get fares) then there could be a wider impact, but it’s too early to say.
What’s next?
We will be working to prepare our appeal to the Supreme Court. We’ll keep you updated on any developments.