London @Uber drivers are workers: summary & analysis of today’s Employment Appeal Tribunal decision #ukemplaw #gigwork Thread. 1/n
Headline story: EAT fully upholds Employment Tribunal’s findings from last November. @Uber drivers are workers, entitled to basic rights incl min wage… 2/n
Decision starts with useful summary of key points (see my earlier comments here: ) 3/n
Her Honour Judge Eady QC the sets out the key facts, adopting the Employment Tribunal’s approach (albeit with the Shakespearean flourish) 4/n
Finds clear personal service obligation, both during ‘onboarding’ and subsequent access to the app [10]-[11] 5/n
‘Welcome Pack’ with detailed instruction includes clear limitations on driver – passenger contact 6/n
Notion of ‘recommendations’ clashes with potential legal consequences: if not followed, ‘may constitute a breach of your partner terms’ 7/n
Oher elements of business model include stipulations as to which cars drivers can supply… 8/n
… the technical freedom to negotiate lower fares than those stipulated by the app … 9/n
… and app-generated invoices addressed to passengers on drivers’ behalf. 10/n
Acceptance statistics render freedom to accept rides ‘nominal’, even though deactivation period lowered from 10 to 2 minutes 11/n
On control, EAT extensively cites ET ‘examples of control being exercised by Uber over how drivers performed their work’… 12/n
… whilst also highlighting factors ‘suggesting that the drivers operated as independent contractors’ 13/n
There follows an extensive discussion of Private Hire Licensing regime (of interest only to the bravest of lawyers…) 14/n
This is key to @Uber’s appeal: in the absence of direct contracts, ‘Uber says much is determined as a result of this regulatory framework’ 15/n
Both drivers and customers contractually agree that @Uber does not provide transportation services, but is merely an agent. 16/n
Under those terms, @Uber ‘is a technology services provider that does not provide Transportation Services’ 17/n
The problem w/ these provisions? ET found language in contractual documentation ‘incompatible’ with ‘other materials emanating from Uber’ 18/n
HHJ Eady then turns to the legal framework: worker status under s 230(3)(b)… 19/n
… and sets out the ET’s (highly critical) findings and conclusions. 20/n
Reminder of ET finding that Uber was not working for drivers, but the other way round 22/n
Reality diverges from contractual terms, hence ET allowed to disregard the latter (Autoclenz) 23/n
On to @Uber’s challenge: app is ‘a powerful piece of technology’, ULL merely exists for regulatory purposes. Powerful legal implications: if true, agency (rather than employment) law applies. 24/n
There follows a detailed discussion of min-cab cases, both from employment & VAT perspective: I’ll spare you the detail; they go either way depending on facts. 25/n
. @Uber relies on Royal Hong Kong Golf Club (1998 Privy Council) and more recently Stringfellows v Quashie (2012 EWCA) 26/n
This is the heart of the argument: ET erred in rejecting agency analysis – ‘Uber was simply [the drivers’] agent’ 27/n
Further challenges include error in relying on regulatory requirements as indicia of employment relationship, and challenges to factual findings 28/n
At [103], Her Honour cuts to the chase: ‘when the drivers are working, who are they working for?’ 29/n
The agency arguments are dismissed as a matter of business reality; ‘in part, due to the size of the operation’ 30/n
Employment Tribunal not bound by contractual labels: ‘concerned to discover the true nature of the relationships’ instead 31/n
Personal service requirement shouldn’t be disregarded ‘simply because [of] compliance with a particular regulation’ 32/n
In any event, control in this case not limited to matters arising as a result of regulation 33/n
The absence of an obligation to accept trips ‘was nuanced by the finding that a driver’s account status would be lost if there was a failure to accept at least 80% of trips’ 34/n
Result: ET correct to conclude that there was a personal service contract between ULL and drivers; workers status upheld. 35/n
There’s more to come on the working time question, but for now: legally, there’s not much that’s exciting here beyond the rejection of the agency approach. Tribunals look to facts, rather than just contracts. 36/36

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More from @JeremiasPrassl

Nov 21, 2017
On my way home from @ilo and @BelgiumUNGeneva high-level forum on the #sharing economy and its social challenges: a few highlights from a great discussion, moderated by @ilo senior economist Janine Berg. Short thread. 1/10 @ILO_live
Josephine Teo, Singapore Minister of Manpower followed w/ fascinating overview of tripartite working group–from offering standard contracts & payment dispute resolution to challenges of #freelancers for social sec. V interested to learn more about their work! 3/10 @SPMGMissionGva
.@Uber's @asingh_au emphasised the challenges of operating in 79 countries, with vastly different laws – and social contracts; the many dimensions of flexibility (scheduling / variations); and the need for policy innovation. 4/10
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