Lessons from the UK Supreme Court – Uber Drivers are Employees/Workers: Patrick Tay

Private Hire Car Drivers: self-employed or workers?

This article was written by Patrick Tay, a Member of Parliament and Assistant Secretary-General of NTUC. Original article republished with permission.

Last week, the UK Supreme Court delivered its judgment on a case where drivers who were using the Uber app, brought claims against Uber for minimum wages and other employment benefits. 

While the employment laws between Singapore and the UK may not be entirely similar, it is nonetheless noteworthy that there are similarities between the Uber app in the UK and other private hire transportation apps in Singapore.

Sharing the case here and hoping that we will be able to pick a leaf and work towards giving freelancers greater workplace and employment rights.

I will be speaking and highlighting legislation related to freelancers, at the Ministry of Manpower Committee of Supply (COS) next week. I look forward to a healthy exchange in shaping legal developments and local jurisprudence on freelancers’ rights.

Court’s Decision on Uber UK Case and How it was Made

The following issues were explored in the case [UBER BV and others (Appellants) v Aslam and others (Respondent) [2021] UKSC 5]:

(a) Whether an employment tribunal was entitled to find that drivers whose work is arranged through the Uber App qualify for national minimum wage, paid annual leave and other worker rights, or whether they do not have such rights because they are independent contractors; and

(b) If the drivers are Uber workers, whether the employment tribunal was also entitled to find that the drivers were working under such worker contracts whenever they logged into the Uber app within the territory in which they were licensed to operate and ready and willing to accept trips, or whether, as Uber argues, they were working only when driving passengers to their destinations.

It is important to note that the rights claimed by the drivers (i.e. minimum wage, paid annual leave and other worker rights) are provided for in the British legislation on “workers”. 

At first instance, the employment tribunal decided that the drivers were “workers” (even though they were not employed under employment contracts), as they worked for Uber London under “workers’ contracts.”

Uber’s appeal against this finding at the Employment Appeal Tribunal and the Court of Appeal was dismissed. Dissatisfied with the lower courts’ decision, Uber has now filed an appeal with the UK Supreme Court.

The Court considered the following factors in arriving at its decision that the drivers were employees/workers entitled to worker rights:-

(1) Whether the drivers were entitled to qualify for national minimum wage, paid annual leave and other worker benefits

(a) First, the remuneration paid to drivers for the work they do is fixed by Uber and the drivers have no control and/or say in it (apart from choosing when and how much to work).

Typically, fares for private hire vehicles are not determined by the regulator. However, in Uber’s case, Uber sets the fares and the drivers are not permitted to charge more than the fare calculated by the Uber app.

Additionally, Uber also sets the “service fee” payable to the drivers, which is deducted from the fares paid by the passengers to the drivers. It exerts further control over drivers’ remuneration in determining whether to make a full or partial refund of the fares whenever there are complaints from passengers regarding their services.

(b) Second, Uber prescribes the contractual terms on which drivers render their services. Apart from having to accept Uber’s standard form agreements, Uber drivers are also forced to accept Uber’s terms on which they transport passengers.

(c) Third, while it is true that the drivers may decide where and the timings to work at, once a driver has logged onto the Uber app, Uber exercises control over the driver’s acceptance of the request in two ways.

For one, Uber controls the information provided to the driver – it does not disclose the passenger’s destination and the driver, therefore, cannot decline a booking on the basis that he/she does not wish to travel to that location.

Also, Uber exercises control by monitoring the driver’s frequency of acceptance and/or cancellation of trip requests. If the driver’s cancellation rate exceeds a certain set level, the driver may be automatically logged off the Uber app and shut out from logging back in. This has the effect of imposing a financial penalty on the driver, and in so doing, places drivers in a position of subordination to Uber. 

Notably, Uber’s above practices contrast with taxi drivers who are not obliged to accept any requests.

(d) Fourth, Uber exerts control over the standard of services rendered by the drivers. 

This is illustrated in the following instances:-

  1. vetting of the types of car(s) the drivers use;
  2. complete ownership of the technology used, which technology is integral to the driver’s performance of the said services;
  3. monitoring of drivers’ acceptance and/or cancellation rates which may have financial implications on the driver’s earnings (see point (c) above);
  4. rating systems by the passengers, which Uber uses as an internal tool for managing drivers’ performance and a basis for termination decisions.

(e) Fifth, Uber limits communication between the driver and passenger, to the bare minimum necessary for the transportation of the passenger.

Parties are barred from learning the other’s contact details, as the payment of fares, complaints etc are all handled by Uber. The only instance in which a passenger’s contact details are exchanged is where the driver needs to return lost property to the passenger.

The above factors seen collectively, show that Uber exercises a substantial amount of control over the drivers and how they perform their services, which is characteristic of an employment relationship, entitling the workers to employment benefits under the law.

The Supreme Court further noted that due to Uber’s tight control exercised, the drivers have little or no ability to improve their economic position through professional or entrepreneurial skill.

Practically speaking, this may only increase their take-home earnings through working longer hours and accepting more trip requests, both of which go towards bolstering Uber’s profit margins.

(2) Whether the drivers were “working” under such worker contracts whenever they logged into the Uber app, and ready and willing to accept trips

Having determined that the drivers were “workers” who worked for Uber under “worker’s contracts” within the statutory definition, the next question which arises is – during what periods were the drivers working?

Based on the evidence adduced at the employment tribunal, the Supreme Court found that the drivers were at Uber’s disposal the moment they logged into the Uber app and were ready and willing to accept trips. Any assertions that the drivers could have been working for other apps operated by Ubers’ competitors, while simultaneously being logged onto the Uber app could not be sustained, as this was not borne out by the evidence.

Accordingly, the Supreme Court found that the drivers were working for Uber the moment they logged into the Uber app and were ready and willing to accept trips. 

New Ways of Working and What it Means for Our Workforce

With the COVID-19 situation, more and more people are exploring new ways of working, i.e., working from home, micro jobs, and others. The labour landscape will have to change to adapt to these new ways of working through digital platforms. NTUC will continue to look for ways to better represent self-employed persons.

For a start, NTUC will ask to review both the Trade Unions Act and possibly the Industrial Relations Act or relevant laws to better represent freelancers. I plan to raise this at the upcoming Committee of Supply for MOM.

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