Uber drivers’ ‘worker’ status based on an error of law, court hears

A landmark ruling that Uber drivers are “workers” ignored the fact that the relationship between the company and its drivers is “typical of the private hire industry”, the Court of Appeal has heard.

The ride-hailing firm is attempting to overturn employment tribunal findings which could pave the way for tens of thousands of its drivers in the UK to receive the national minimum wage and paid holiday.

At a hearing in London on Tuesday, counsel for Uber said “the agency model” – with Uber acting as an agent between drivers and passengers – has been used in the private hire industry “for many years”.

Dinah Rose QC, for Uber, said Uber was not “unusual” because of the relationship between it and its drivers, “but because the Uber app enables it to operate on a much larger scale than traditional minicab companies”.

Last November, the Employment Appeal Tribunal (EAT) dismissed Uber’s appeal against an earlier tribunal ruling that former drivers and co-claimants Yaseen Aslam and James Farrar were “workers” at the time they were operating for Uber.

Uber contends that both tribunals “erred in law” in concluding that the pair were workers, submitting that it “wrongly disregarded the written contracts in which the parties’ agreements were recorded”.

An earlier employment tribunal found Uber’s agreements with drivers contained “fictions, twisted language and even brand new terminology”, and that the contracts “did not correspond with the practical reality”.

However, Ms Rose said that the contracts “reflected the true relationship and terms of the agreements between the parties”.

She argued that the tribunals “misunderstood or failed to apply basic principles of agency law” and had “treated as bizarre or absurd normal relationships widespread in the industry”.

Ms Rose concluded: “The only legally proper conclusion on the facts found by the [employment tribunal] was that the claimants were not employed as workers by Uber.”

Jason Galbraith-Marten QC, for Mr Aslam and Mr Farrar, said there was “no express agreement” by which the claimants appointed Uber “to act as their agent and setting out the nature and extent of that agency”.

He said that the tribunals’ task was therefore to “determine the true nature of the (implied) agreement” between drivers and Uber.

Mr Galbraith-Marten said the tribunals were “entitled to ask whether the claimants are genuinely in business on their own account” or whether they were “providing their services” to Uber.

He added that, if Uber was not acting as the drivers’ agent, “the purported driver-passenger contract is indeed a fiction”.

Before the hearing, hundreds of “precarious workers” attended a demonstration organised by the Independent Workers Union of Great Britain (IWGB), which represents Mr Aslam and Mr Farrar.

IWGB general secretary Jason Moyer-Lee said: “Today’s action is the articulation of the legitimate rage of the precarious workers and the exploited workers of the UK.

“Uber have already lost two court battles. They’re fighting to not have to give minimum wage and paid holidays and pensions and other basic employment rights to the drivers who work for them.”

Frank Field, chair of the House of Commons work and pensions select committee, said precarious workers “have clearly had enough”.

Mr Field said the Uber drivers “began this three years ago and the boss class are stretching it out with appeals”.

He added: “They can afford to. Uber are rich enough to put themselves above the law.”

Master of the Rolls Sir Terence Etherton, Lord Justice Underhill and Lord Justice Bean, who will hear arguments from parties at a two-day hearing, are expected to reserve their judgment in the case.