back to article Uber loses appeal against UK employment rights for workers

Taxi firm Uber has today lost its appeal against a ruling that its drivers should be classed as workers rather than self-employed. In October 2016, the Central London Employment Tribunal ruled that two Uber drivers, James Farrar and Yaseen Aslam, were Uber staff and entitled to holiday pay, paid rest breaks and the minimum …

  1. Andrew Moore

    Surely...

    "A key element of being a worker is having to turn up for work even if you don’t want to."

    I'm pretty sure that Zero Hour Contracts have kinda rendered this point moot.

    1. James 51

      Re: Surely...

      With zero security contracts you still have to turn up but the 'employer' is free to sent you home for free (to them). Sort of a reverse uber if you will.

    2. Anonymous Coward
      Anonymous Coward

      Re: Surely...

      But employees on Zero Hour Contracts cant decide when they want to work and not work, only the Employers.

    3. Oh Homer
      Mushroom

      Not an employer?

      Oh really?

      “When allocating bookings, Uber deliberately does not tell the driver the destination and strongly discourages drivers from asking passengers the destination before pick up – so that drivers are not able to decline a booking because they do not wish to travel to that destination.”

      Nothing like being your own "boss", eh?

      1. Jim 59

        Re: Not an employer?

        “When allocating bookings, Uber deliberately does not tell the driver the destination and strongly discourages drivers from asking passengers the destination before pick up – so that drivers are not able to decline a booking because they do not wish to travel to that destination.”

        Ah. So that's why Uber cars are available for rides from <big town> to <small village>, but not in the other direction. If all the Uber drivers in <big town> knew I wanted a ride from my <small village> back to <big town>, they would be available to take me, as it means no more driving for them.

        A bug in the Uber algorhthm, perhaps.

      2. Gene Cash Silver badge

        Re: Not an employer?

        > does not tell the driver the destination

        Ah. This explains it. So I needed to go from Orlando to Sarasota to pick up a repaired vehicle, which is about 150 miles, and I called an Uber.

        I figured this was the case, so I told the driver about it (and he made quite a face) and gave him the option of backing out and I wouldn't be upset, but he took me anyway.

        Now I drive a motorcycle as my main transportation, but it's been a long time since I've been consistently 25+ mph over the limit for that long a stretch.

        1. MachDiamond Silver badge

          Re: Not an employer?

          "Ah. This explains it. So I needed to go from Orlando to Sarasota to pick up a repaired vehicle, which is about 150 miles, and I called an Uber."

          If a driver only wanted to work another couple of hours that day, they certainly wouldn't want to pick up somebody that needed to go 150 miles and then possibly have to dead head 3 hours back.

          What was the fare? 6 hours of driving and around a tank of gas and the driver might have been further ahead working a shift at McDonalds.

    4. JimboSmith Silver badge

      Re: Surely...

      I thought a major argument at the employment tribunal was that if the drivers cancel a certain number (or % possibly) of journeys Uber don't work with them anymore. If that's true then I don't see how they can be self employed. I was self employed for a while and I really could choose what I did and who I said yes to working for.

      This is also in my opinion a very interesting article about Uber: https://www.londonreconnections.com/2017/understanding-uber-not-app/

      1. Anonymous Coward
        Anonymous Coward

        Re: Surely...

        " If that's true then I don't see how they can be self employed. I was self employed for a while and I really could choose what I did and who I said yes to working for."

        But surely the company could also decide not to work with you as well? A contractor is very easy for the company to decide not to work with you for any reason unless under contract. Doesn't seem to compute that they can't be self-employed.

        Not trying to stick up for Uber just in general, seems a strange argument to make - I've hired IT contractors before and then decided not to work with them again because they wouldn't do certain jobs as they were too 'boring' (fault-finding) and so the contract allowed to terminate immediately.

      2. Joe Montana

        Re: Surely...

        Drivers are free to not accept a potential customer, but if they accept a customer and then cancel that causes inconvenience for the customer who then has to find another driver willing to take them which reflects badly on the service.

    5. John Smith 19 Gold badge
      Unhappy

      "I'm pretty sure that Zero Hour Contracts have kinda rendered this point moot."

      Indeed.

      What is this "IPSE" ? I've never heard of them.

      Sound like some sort of astroturging outfit.

      Motto "Work is freedom" ?

    6. ecofeco Silver badge

      Re: Surely...

      I'm pretty sure that Zero Hour Contracts have kinda rendered this point moot.

      Yep, live by the sword, die by the sword. This is certainly fair turn about.

  2. Whitter
    Flame

    Independence of expert comments?

    "IPSE drives on with Uber partnership

    Posted on: Thursday 27th of April 2017 14:14

    IPSE is committed to representing all self-employed people in the UK. We are therefore delighted to announce a new partnership with Uber that strengthens IPSE’s position as the most influential voice for the self-employed in the UK.

    The new venture will see IPSE offer a bespoke membership package to drivers who use Uber, the popular app which connects riders with licensed private hire drivers."

    1. graeme leggett

      Re: Independence of expert comments?

      Yes. Basically join IPSE and you can get cover such as " up to £2000 if ill and unable to drive for two weeks or more"

      And they say that Uber is contributing to cost of the scheme.

      I think there's a definite element of COI. If only that "workers" are more likely to join a union than an association of contractors.

    2. Anonymous Coward
      Anonymous Coward

      ""IPSE drives on with Uber partnership"

      "Affiliated to the Union of Cape Twisters and Allied Trades."

  3. JimmyPage Silver badge
    FAIL

    As I recall ...

    the original judgement was very full, precise, and had no real room for any wriggling. As this appeal seems to show.

    There were several interconnected checkboxes which made the drivers employees, not just a single rebuttable point of law.

    One has to wonder whos paying the Association of Independent Professionals and the Self Employed (IPSE) expressed surprise at the ruling. for their opinion ???? And they might have looked a little less tittish if they had read the original ruling, rather than sounding off willy nilly, as they'd know the fact that an Uber driver cannot negotiate the fee for a job before acceptance moves them from being "self employed" to an employee. That was one aspect - there were a raft more.

  4. Stratman

    How far

    down the "this person works for you and is staff" road is it necessary to go before employer's National Insurance needs to be paid?

    1. Voland's right hand Silver badge

      Re: How far

      How far down

      A couple of millimetres.

      The real issue for Uber is not the minimum wage and not the holiday entitlement. The real issue is that it will either have to foot the NI bill for all of its employees or force all of them to register as LTDs and operate proper accounting (and once again - pay NI and taxes). Which does not get Uber very far because if they work predominantly with Uber, IR35 strikes again and Uber still has to pay NI and income tax at source.

      It is the skimping on this which makes Uber "competitive". The moment it has to start paying ALL applicable taxes it stops being competitive. The cost will be the same or worse than a well run cab/private hire company.

      1. ratfox Silver badge

        Re: How far

        It is the skimping on this which makes Uber "competitive".

        That, and the fact that they are pretty much subsidizing all the rides with the billions they have raised with VCs.

        1. Tom 7 Silver badge

          Re: How far

          "That, and the fact that they are pretty much subsidizing all the rides with the billions they have raised with VCs."

          Just because they dont pay any tax on profits does not mean there are not profits and it does not mean they are not healthy profits. Just not here by some quantum accounting definition of 'here'.

      2. John Lilburne

        Re: How far

        Some 12 years ago my father was running a similar scheme where his workers were 'self -employed' but he directed where they went etc.HMRC were having none of it and declared that they were employees. If Uber get away with this then there are several £100 thousand the taxman owes me.

    2. katrinab Silver badge

      Re: How far

      Not even as far as this tribunal has gone.

      It is possible to be an employee for NI purposes but not an employee for any other purpose.

  5. Steve Davies 3 Silver badge

    Not over yet

    Other news outlets are reporting that Uber are planning on taking this all the way to the Supreme Court.

    1. Arctic fox

      Re: Not over yet

      That does not surprise me because this ruling essentially cuts the legs off of Uber's serfdom business model.

    2. JimmyPage Silver badge
      Mushroom

      Re: Uber are planning on taking this all the way to the Supreme Court.

      Well, it's their money. Better pay lawyers than drivers, eh ?

    3. Voland's right hand Silver badge

      Re: Not over yet

      Other news outlets are reporting that Uber are planning on taking this all the way to the Supreme Court.

      It will not change a thing.

      What is a real pity that this will not result HMRC getting a backdated NI bill from them back to 2nd of July 2012. Any other company would have had to pay exactly this with HMRC interest rates. This is not because the NI and the tax are not due, it is because HMRC will most likely not pursue them the same way they would pursue a small taxi company or your corner mom and pop shop.

  6. wolfetone

    "The firm has said it will appeal the latest ruling again."

    The firm would rather spend more money paying solicitors to do their best lying in order to get out of paying money that they really ought to be paying their employees.

    1. Anonymous Coward
      Anonymous Coward

      given that the core of their "disruptive" model is avoiding employer's responsibilities (cost), yeah, I bet they will spend everything they have (preferably other people's money, but still), because if they lose this, if they are classed as "employer" everywhere, their business is going to collapse. Puff, 100% disrupted.

  7. Anonymous Coward
    Anonymous Coward

    I'm torn over this. I think Uber are a very poor company who don't respect their 'workers' and would see them hung out to dry.

    However If they were a decent company and had plenty of competition then the actual business seems legitimate. Any driver can log in and take jobs if they wish when they wish - I used to do similar as a mystery shopper. I would log in to their portal see the mystery shopping jobs and go and do them - I didn't need to tell them when I was going to no longer do it, I just stopped doing it. I could pick up a job for a few minutes time (if I was hungry and wanted a pizza) or pre book for a month away (a hotel for instance).

    So if they have to be paid sick time, holiday and minimum wage how will that work in practice. Many drivers seem to have multiple jobs - they work for a cab company and Uber at the same time, taking Uber jobs when their cab bookings are quiet. Also with no requirement to take a job does that mean they can get minimum wage just for being logged in to the app and then still choose to ignore jobs or will they now be forced to take jobs whenever they arise? Would the driver go to an area with very few jobs, log into the app and then do other work knowing no jobs will come up but still get paid minimum wage?

    As for setting the price, I see plenty of jobs advertised for home cleaners with the wage stipulated where the cleaner is self employed for a couple of hours of a week. Seems strange that they would now be regarded as employees. And haven't black cab drivers always been self employed but still have their rates dictated to them?

    So I feel the law needs updating for the gig economy so that the workers don't get stiffed (e.g. don't need to work 40 hours just to pay their expenses and costs) and they make a reasonable living out of it but still have the flexibility to take only jobs they wish or work for multiple companies.Get it to a position where both parties have equal power in the agreement and not resort to desperation and a minimal wage to make your business succeed. Maybe some kind of cooperative where the workers get a profit share and can vote for the rates charged to customers based upon their service and jobs carried out for instance.

    1. ratfox Silver badge

      However If they were a decent company and had plenty of competition then the actual business seems legitimate.

      To be honest, even though the legal system is supposed to blindly apply the law, I think people underestimate how much the reputation and general behavior of a company can influence rulings. I wouldn't be surprised if the ruling had been different, were Uber indeed a decent company with plenty of competition.

  8. Spudley

    "A key element of being a worker is having to turn up for work even if you don’t want to. This is clearly not the case with people who drive through Uber – they choose when and how long they work for by logging on or off the app."

    I've heard enough stories about Uber "firing" drivers simply because they didn't log in often enough that I simply don't believe Uber's line on this.

  9. GruntyMcPugh Silver badge

    Chris Bryce, IPSE chief exec, said: "It is astonishing that the employment tribunal granted the two drivers worker status. A key element of being a worker is having to turn up for work even if you don’t want to."

    So Chris, now Uber have employees, Uber can use this metric to force their employees to login to shifts can't they? And of course pay them for standing around doing nothing if there isn't sufficient demand.

    Oh wait Chris, that's a shitty metric for deciding if someone is an employee, or self employed, isn't it?

  10. Anonymous Coward
    Anonymous Coward

    I'm someone who in a previous life was told how many days the local branch needed me for each week. I was told at the start of each month what days and that was fine with me. However then HR found out and things were made to change. I was given a new contract with a set number of days and the option for the local manager to add days as needed. The reason for this was because Head Office viewed my existing contract as zero hours even though it was really nothing of the sort. I worked 4-5 days a week and knew which days off I was getting. I disliked the new contract and told HR that I preferred the old one better as it was more flexible for me. That had no effect because they still viewed it as a zero hours contract.

    Nothing like being your own "boss", eh?

    Having said all that I hope that Uber lose their appeal(s) because they shouldn't be allowed to get away with this.

  11. Zippy's Sausage Factory

    Silly question, maybe...

    ...but as Uber drivers are now workers, does this mean they now fall under IR35?

    1. katrinab Silver badge

      Re: Silly question, maybe...

      IR35 applies to limited companies. Über drivers are not limited companies. Limited Companies can’t get a minicab drivers licence from TfL.

  12. a pressbutton Silver badge

    if it walks like a duck, quacks like a duck, poos like a duck, swims like a duck, flies like a duck

    ...then it is a duck...

    and in the same manner, Uber is a minicab co and so should have the same rules applied to it as all other minicab companies.

    not overly bothered if that means that all uber drivers are employed or not.

    The key point is that Uber should not get an advantage over other minicab companies by virtue of ignoring the law.

    If ignoring the law is ok for them, I need to get my credit card out and buy one of those big excavators and a map of nearby cash tills

    ...

    profit!

    (and then not pay the cc bill

    ...profit!)

    1. Anonymous Coward
      Anonymous Coward

      Re: if it ... quacks like a duck ... then it is a duck...

      No, it's a mallard. Other ducks don't quack.

  13. ecofeco Silver badge

    What's this?!

    Someone is miffed the American labor model doesn't fly in Europe?

    Oh dear. Whatever will they do? *snerk*

  14. J.G.Harston Silver badge

    When Urber are told they are a dispatch service and must be regulated as a dispatch service, they say: no, no, we're a fleet company. When regulators turn around and say, ok, you're a fleet company, you must be regulated as a fleet company, they say: no, no, we're a dispatch service.

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