Last week, the Supreme Court gave their long-awaited judgment in the Uber case in which they upheld all previous decisions that Uber drivers were workers notwithstanding the contractual documentation in which Uber purported to classify them as self-employed.

It has been long established by case law that contractual documentation should be ignored if it conflicts with the reality of the working relationship.  The Supreme Court re-iterated that the law has given individuals in certain working relationships the right to receive certain employment benefits, such as the national minimum wage and holiday rights.  It is not possible for an employer to be able to override those entitlements simply by creating a document which attempts to wrongly categorise an individual as one who doesn’t have those entitlements under the law.

In this case, the drivers were clearly subordinate to and under the control of Uber, rather than being in business on their own account.  This control over them was evidenced by a number of factors.  Not only did Uber decide how much they could earn from any trip by fixing the passengers’ fare, but also imposed contractual terms on them which were not subject to any negotiation by the driver.  Uber also required them to adhere to certain standards of availability whilst logged into the app, failing which they would be penalised by Uber, and the way in which they provided the service which could lead to potential termination if their performance was not considered satisfactory.  Finally, they were only entitled to have limited communication with the passengers during any trip and no general communication with them thereafter.

The Supreme Court also dealt with the difficult issue as to when an Uber driver started working.  It upheld the previous findings that they were working (for the purposes of both the national minimum wage and working time) from when they logged in to their Uber app and were available to work in their assigned geographical area,   They carried on working until they logged  off their Uber app or were no longer available for work, whether or not they were carrying passengers.

Ever since the claimants were successful in the employment tribunal back in 2016, the Uber case has been touted as extending the rights of those working in the gig economy.  As the opportunities for working in different ways have grown over the years, various employers have attempted to push the boundaries of purported self-employment of those working for them and they have failed on every occasion but one (where it was found that the individuals had a genuine right of substitution).  

 These cases have shown that employers cannot create contractual documentation which is not aligned with the reality of the working relationship in order to deny workers the rights which employment law has provided for them.  However, greater employment rights for such workers means greater employment costs, which in turn could lead to greater costs for the consumer. 

 The Supreme Court’s judgment will be considered (or at least hoped for) by many to be the final nail in the coffin of disingenuous contractual documentation.  It will also make it much harder for those employers who genuinely believed that they were entitled to organise their working relationships in a manner which would now fall through the cracks exposed by this judgment.

If you would like your contractual documentation to be reviewed, please contact the team at Synchrony Law.

 23 February 2021